      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-05-00430-CV



       Bechtel Corporation; MasTec North America, Inc., d/b/a Wilde Construction;
         C&S Network Construction and Bechtel Telecommunications, Appellants

                                                v.

                         Citgo Products Pipeline Company, Appellee


   FROM THE DISTRICT COURT OF CALDWELL COUNTY, 22ND JUDICIAL DISTRICT
        NO. 01-0-213, HONORABLE TODD A. BLOMERTH, JUDGE PRESIDING



                                         OPINION


               A work crew employed by MasTec North America, Inc. d/b/a Wilde Construction

(MasTec/Wilde) ruptured an underground gasoline pipeline owned and operated by CITGO Products

Pipeline Company (CITGO) while excavating for an underground telecommunications line.

Approximately 390 barrels of gasoline escaped into the surrounding area before the spill could be

contained. CITGO incurred substantial expenses in responding to the spill and remediating

contamination to soil and groundwater. CITGO sued MasTec/Wilde; C&S Network Construction,

a MasTec/Wilde affiliate also involved in the project; and Bechtel Corporation and Bechtel

Telecommunications (collectively, Bechtel), the construction manager on the project. CITGO’s

claims were tried to a jury. Based on the verdict and evidence it subsequently heard on attorney’s

fees, the district court awarded CITGO a total of $1,461,955.80 in actual damages from

MasTec/Wilde (which had assumed C&S’s liabilities in addition to its own), $115,919.48 from
Bechtel, prejudgment interest on these amounts, and $295,357.25 in attorney’s fees from

MasTec/Wilde. MasTec/Wilde, C&S, and Bechtel have jointly appealed the judgment, bringing

fifteen common issues. We will reverse and render judgment in part, and conditionally affirm the

judgment in part.


                                          BACKGROUND

               The pipeline rupture occurred in May 1999, while appellants were laying an

underground fiber-optic cable for Enron Broadband Services, Inc., as part of Enron Broadband’s

“Texas Loop Project.” Enron Broadband hired MasTec/Wilde to lay the cable. MasTec/Wilde, in

turn, subcontracted with C&S to work on the project. At all relevant times, MasTec/Wilde and C&S

were each wholly-owned subsidiaries of MasTec, Inc. As their working arrangement was described

at trial, MasTec/Wilde operated “rip crews” who would plow or “rip” trenches in the ground in

which the cable would be placed, while C&S operated “bore crews” that would drill or bore holes

underground as necessary to lay cable beneath obstacles. Enron Broadband also hired Bechtel as its

construction manager for the Texas Loop Project. Bechtel’s job included supervising the progress

of the cable-laying operations.

               The nature of the work to be performed on the Texas Loop Project implicated the

Underground Facility Damage Prevention and Safety Act, commonly known as the Texas “one-call”

statute. The current iteration of the one-call statute is codified in chapter 251 of the utilities code.

See generally Tex. Util. Code Ann. §§ 251.001-.203 (West 2007).                At the time this case

arose, however, the one-call statute was contained in article 9033 of the revised civil statutes,

Act of Apr. 23, 1999, 76th Leg., R.S., ch. 62, § 18.17(a), 1999 Tex. Gen. Laws 392, 392-402

                                                   2
(“Former art. 9033”), and the case was tried, submitted, and briefed on appeal with extensive

reference to that version of the statute. Although the two versions are largely identical in substantive

respects material to this proceeding, we will refer to the former article 9033 version for clarity.

               The one-call statute generally requires that any person intending to “excavate”

(as MasTec/Wilde and C&S undisputedly were1) to give notice to a “notification center” not earlier

than the 14th day before the date excavation is to begin or later than the 48th hour before the time

excavation is to begin. Former art. 9033, § 9(a). Such notice shall include (1) the name of the

person serving the notice; (2) the “location of the proposed area of excavation,” including a street

address, if available, or “an accurate description of the excavation area using any available

designations such as the closest street, road, or intersection”; (3) the name, address, and telephone

number of the excavator or excavator’s company; (4) the excavator’s “field telephone number,” if

available; (5) “the starting date and time and the anticipated completion date of the excavation”; and

(6) a statement as to whether explosives will be used. Id. § 9(b).2

               A “notification center” under the one-call statute refers to an entity in which

“operators” of “Class A underground facilities”—which include underground gasoline



       1
         The one-call statute defines “excavate” or “excavation” to mean “to use explosives or a
motor, engine, hydraulic or pneumatically powered tool, or other mechanized equipment of any kind
and includes auguring, backfilling, boring, compressing, digging, ditching, drilling, dragging,
dredging, grading, mechanical probing, plowing-in, pulling-in, ripping, scraping, trenching, and
tunneling to remove or otherwise disturb soil to a depth of 16 or more inches.” Act of Apr. 23, 1999,
76th Leg., R.S., ch. 62, § 18.17(a), 1999 Tex. Gen. Laws 392, 393 (“Former art. 9033”).
       2
          A person may deliver this information “by any appropriate method, including the use of
electronic means of data transfer,” and the notice is considered to have been provided when “the
person delivers the required information and a notification center receives that information within
the time limits prescribed by this Act.” Id. § 11.

                                                   3
pipelines3—must “participate,” as a condition of doing business in Texas, by providing the

notification center maps, grid locations, or other identifiers indicating the locations of the operator’s

underground facilities; updates regarding any changes in such information; and the name and

telephone number of a contact person or persons. Id. § 7(a), (b). The notification center, in turn, is

required, within two hours after receiving a notice of intent to excavate, to transmit the information

received from the excavator to “each member operator that may have an underground facility in the

vicinity of the proposed excavation operation.” Id. § 8(b), (c).

                 A C&S employee, Clint Ferguson, had the responsibility as “construction locator”

to make the required “one-calls” for both the MasTec/Wilde rip crews and the C&S bore

crews working on the Texas Loop Project. A portion of the project, approximately 8.5 miles

in length, was to run through southern Caldwell County—the Luling area—along the north side of

State Highway 90. Work on this portion of the project commenced in April 1999. Beginning as

early as April 12, 1999, Ferguson made a series of one-calls to a notification center in advance of

and during the crews’ work in Caldwell County. The notification center, in turn, generated

notifications to operators of underground facilities in the area.

                 East of Luling, the route of the planned Texas Loop Project excavation crossed a

gasoline pipeline, known as the CASA Pipeline, that was owned and operated by CITGO. As one

of the operators who had underground facilities in the area, CITGO received the notices transmitted

by the notification center in response to Ferguson’s one-calls. The information transmitted by the

notification center reflected that the work was to be performed by “C&S Construction” for “Enron,”


        3
            See id. § 2(2).

                                                   4
and provided Clint Ferguson’s name and a phone number as the designated contact. The location

of the proposed excavation was described in these notices as the entire right-of-way along the north

side of Highway 90 running from the Caldwell-Guadalupe County line easterly to the

Caldwell-Gonzalez County line.

               The one-call statute requires that an operator who receives a one-call notice

must—generally within 48 hours after the time the excavator gave notice to the notification center

of its intent to excavate, or “at a time agreed to by the operator and the excavator”—“mark the

approximate location of its underground facilities at or near the site of the proposed excavation if

the operator believes that marking the location is necessary.” Former art. 9033, § 14(a).4 The statute

also affords an operator the right to be present at an excavation site if it meets certain conditions:


       To have a representative present during the excavation, the operator shall contact the
       excavator and advise the excavator of the operator’s intent to be present during
       excavation and confirm the start time of the excavation. If the excavator wants to
       change the start time, the excavator shall notify the operator to set a mutually
       agreed-to time to begin the excavation.


Id. § 9(c). Importantly, if “[a]n excavator . . . has fully complied with the Act,” the statute further

provides, the excavator “may not be liable for damage to an underground facility that was not

marked in accordance with the Act.” Id. § 14(c).




       4
           The one-call statute has since been amended to require an operator who does not
deem marking its facilities “necessary” to give notice of such action to the excavator within
48 hours. Act of May 22, 2001, 77th Leg., R.S., ch. 858, § 2, 2001 Tex. Gen. Laws 1707, 1707-08,
codified at Tex. Util. Code Ann. § 251.157(d) (West 2007). No such provision was contained in the
version of the one-call statute applicable to this case, however.

                                                  5
               It is undisputed that, on May 7, 1999, a MasTec/Wilde rip crew struck the

CASA Pipeline with a “rip cat,”a piece of machinery, weighing 70,000 to 80,000 pounds and having

an 8 to 10 foot blade, used in trenching operations to “rip” or break up ground in advance of a

bulldozer or plow. The impact ruptured the pipeline. Although there was fortunately no explosion,

approximately 390 barrels of gasoline escaped before the spill could be contained. CITGO was able

to recover only about 40 barrels of the gasoline. The escaped gasoline caused contamination to

soil and groundwater. In addition to its lost product and pipeline repairs, CITGO incurred substantial

expenses in responding to and remediating the spill.

               Trial centered largely on whether appellants or CITGO were responsible for the

accident and the extent to which CITGO, C&S, and MasTec/Wilde had each complied with their

respective obligations under the one-call statute. To summarize, CITGO maintained that its

employees and agents had promptly responded to each one-call notification by contacting Ferguson

to inquire about the details of his crews’ upcoming work. During these conversations, according to

CITGO, Ferguson was informed that CITGO intended to have a representative present if his crews

excavated near the CASA Pipeline and that Ferguson had agreed that no such work would occur

without prior notice to CITGO. It further claimed that in response to a one-call notification it

received on the morning of May 7, CITGO’s Sam Bentley called Ferguson and obtained assurances

that Ferguson’s crews would be working several miles to the east of the CASA Pipeline area that

day. Under CITGO’s theory, appellants breached these understandings or promises and violated the

one-call statute when the MasTec/Wilde rip crew excavated in the area later that day without prior

notice and without a CITGO representative present.



                                                  6
               Appellants, by contrast, argued that CITGO was to blame for the accident because

it had failed to locate and mark the CASA Pipeline in compliance with the one-call statute and had

even placed stakes at the site that created the misleading impression regarding areas where the crews

could safely work. According to appellants, Ferguson’s understanding with CITGO was that he

would contact CITGO before his crews worked within the staked area. Appellants further contended

that the MasTec/Wilde rip crew had hit the CASA Pipeline outside the staked area.

               A pivotal event in both side’s versions of the underlying facts was an April 22

meeting between CITGO subcontractor Alton Schulle and Ferguson in the general area of the CASA

Pipeline crossing. Schulle and Ferguson arranged the meeting to discuss excavation near the

pipeline.   An understanding of the configuration of the Highway 90 right-of-way and the

above-ground features signifying the presence of the pipeline is helpful in understanding the

subsequent events. In this area, Highway 90 runs in roughly an east-west direction. A fenceline,

located several feet north of the highway, ran roughly parallel to the highway. In the fenceline was

a metal pipeline marker, and some fenceposts on either side were topped in white—an indication

of a pipeline right-of-way. Near the metal pipeline marker was a vent pipe extending out of the

ground. Another vent pipe appeared on the south side of Highway 90, at an angle southeast of the

other vent pipe.

               During this meeting, Schulle attempted to locate the pipeline with an electronic

“line finder.” He was unsuccessful. Schulle placed a wooden, flagged stake roughly eight feet south

of the vent pipe on the north side of Highway 90 and, later, two additional stakes—one

approximately 17 feet to the west of the first stake, and the other 15 and one half feet to the east of



                                                  7
the original stake. The parties gave competing accounts regarding what Schulle had intended the

stakes to signify. According to Ferguson, after Schulle had attempted unsuccessfully to locate the

pipeline with his line-finder, Schulle approximated the pipeline route by standing on the highway

and “lining up” the vent pipe on each side of the highway with his arms. Based on this estimation,

Ferguson recounted, Schulle placed the middle stake to indicate where he thought the pipeline ran.

Ferguson further testified that he asked Schulle to mark a “safety zone” that his crews would know

to avoid and outside of which they could work. The pair parted ways after their meeting, Ferguson

claimed, with Schulle indicating he would return with a different line-finder and attempt again to

locate the pipeline. Later that day, Ferguson recounted, the two additional stakes had appeared at

the site. According to Ferguson, although he knew the precise location of the pipeline had not been

located, he understood the three stakes to signify that the pipeline was located somewhere within that

area and that his crews could work safely outside of it.

               Schulle, by contrast, denied that he had ever agreed or purported to mark a

“safety zone” where the pipeline actually ran. He claimed that he had placed the stakes solely to call

attention to the CASA Pipeline right-of-way because the metal pipeline marker in the fence, as well

as the white-topped fenceposts, were obscured by brush.5 Schulle and other CITGO witnesses

claimed that Ferguson had a clear understanding that the CASA Pipeline had not yet been located

and that it would be necessary to find the line by carefully digging with a backhoe or by hand to

unearth it before the cable project could cross it. Such efforts, CITGO claims it repeatedly




       5
         Schulle compared his use of the stakes to “the way you would use a highlighter on a piece
of paper” and “was in no way to tell anyone where the pipeline was specifically located.”

                                                  8
emphasized to Ferguson, should occurr only when its representatives were present. According to

CITGO, Ferguson shared that understanding and had agreed that his crews would not dig near the

CASA Pipeline without prior notice to CITGO and its representative being present. It claims that,

in reliance on this understanding, CITGO did not perceive a need to mark the precise route of the

pipeline, as it anticipated that it would work with Ferguson’s crews to unearth the line at the

appointed time. Ferguson, although not disputing that he had promised to give notice to CITGO

before his crews excavated over the pipeline, claimed that this obligation applied only to work his

crews would perform within the staked area.

               On May 6, Schulle and CITGO’s Sam Bennett arranged with Ferguson to meet with

Chad Treadwell, the drilling superintendent of the C&S bore crews. Treadwell recounted that the

purpose of the meeting was to discuss how the crew was to bore under or cross the CASA Pipeline.

He acknowledged that Ferguson had told him that the precise location of the pipeline had not yet

been located. During the meeting, Schulle and Bentley tried to find the pipeline with a line-finder,

again without success. Ferguson, at Bentley’s request, dug a trench with a backhoe in front of the

middle stake in an attempt to locate the pipeline. They did not find it. Based on this information,

Bentley concluded that the pipeline was located somewhere to the east of the middle stake. He

permitted the boring crew to dig in the west part of the staked area in order to bore under a TXDOT

gravel or dirt pile to the immediate west. The CITGO agents did not adjust or move the stakes,

however. Bentley explained that he did not believe it necessary to readjust the stakes because

CITGO had been assured that no excavation would take place at the location without prior notice.




                                                 9
                As it turned out, the portion of the CASA Pipeline north of Highway 90 ran

mostly to the east of the staked area. From the south, the pipeline passes near the vent pipe south

Highway 90 and crosses at a right angle to the roadway, continues running northward into the

highway right-of-way for several feet, then veers at a sharp angle to the northwest. The pipeline

continues in a northwesterly direction so as to cross the fenceline some distance to the west of the

plane on which it had crossed Highway 90 and from which it bent northwestward.6 Because of the

configuration of the pipeline, all or substantially all of the pipeline segments south of the stakes lay

to the east of the staked area.

                CITGO presented evidence of how its employees and agents responded to the one-call

notifications generated by Ferguson, including copies of the one-call notifications. On virtually all

is a stamped form eliciting “Person Contacted,” “Date,” “By,” and “Remarks.” Each form is

completed by hand. According to the handwritten notations, Ferguson assured CITGO on numerous

occasions that his crews would be working in areas other than near the CASA Pipeline and that

he would contact CITGO before his crews began work near the line. One notification, dated

May 5, 1999, at 16:30 (4:30 p.m.), contained handwritten notations indicating that CITGO’s

“Dennis Elly” contacted “Clint” and was advised that “they were about 1 mile west of line.”

Another notification, dated May 7, at 10:15 a.m., contains handwritten notations indicating that

CITGO’s Sam Bentley contacted Clint Ferguson that day and was advised: “This work is east of our

line in Harwood area. Will not be working near our line today.” Harwood is a Caldwell County


        6
          Consequently, if, as Ferguson alleged, Schulle had estimated the pipeline route by lining
up the two vent pipes, Schulle would have identified the long side of a triangle whose other two sides
were formed by the pipeline’s actual route.

                                                  10
community located on Highway 90 several miles east of the CASA Pipeline area. Bentley testified

that he obtained these assurances during the morning of May 7.              Ferguson denied giving

such assurances.

                Later that same day, at approximately 3:00 p.m., the MasTec/Wilde crew hit the

CASA Pipeline with its rip cat. The operator as well as his supervisor, testified that they had

assumed the three wooden stakes at the site reflected the actual pipeline route, and that no one had

informed them that the pipeline had, in fact, not yet been located. There was also evidence that,

consistent with this belief, the operator had attempted to avoid the staked area and begun ripping at

or near the eastern stake going eastward. Although the precise location where the rip cat struck the

pipeline was disputed, there was evidence that the impact had occurred in an area of the pipeline east

of the staked area.

                CITGO subsequently sued a number of parties for damages it incurred in connection

with the pipeline rupture. It asserted causes of action for negligence, negligence per se, trespass,

breach of contract, and promissory estoppel against MasTec/Wilde and C&S. In addition, CITGO

asserted causes of action for negligent hiring, negligent retention, and negligent supervision

against Bechtel. As to all defendants, CITGO alleged malice and sought exemplary damages.

MasTec/Wilde, C&S, and Bechtel raised affirmative defenses, including immunity under the

one-call statute.

                The district court submitted jury issues regarding negligence against C&S,

MasTec/Wilde, Bechtel, and CITGO; promissory estoppel against C&S and MasTec/Wilde; trespass

against C&S and MasTec/Wilde; and appellants’ affirmative defense of immunity under the one-call



                                                 11
statute. Predicated on affirmative findings as to either negligence or trespass as to one or more

defendants, the court also submitted whether such conduct had been committed with malice. The

jury found that the negligence of all parties had proximately caused the pipeline rupture, and

apportioned responsibility 30 percent to MasTec/Wilde, 50 percent to C&S, 10 percent to Bechtel,

and 10 percent to CITGO. The jury awarded $1,159,194.75 in past negligence damages and

$668,250.00 in future negligence damages. The jury failed to find that either C&S or MasTec/Wilde

had committed trespass or that any defendant had acted with malice in committing negligence. As

for promissory estoppel, the jury found that CITGO had foreseeably relied to its detriment on a

promise by both MasTec/Wilde and C&S and awarded $871,413.99 in past damages and

$668,250.00 in future damages. CITGO had requested attorney’s fees under its promissory estoppel

theory, and the parties subsequently tried the amount of such fees to the district court.

               Regarding appellants’ claims of immunity under the one-call statute, the district court

instructed the jury by quoting pertinent portions of the statute and submitting, over objection, a

series of three questions that followed a burden-shifting framework: (1) did MasTec/Wilde and

C&S each “give the notice required by Section 9(a) and 9(b) of the Texas One-Call Statute?”

(i.e., the one-call notice); (2) if so, “Did CITGO respond in accord with Section 9(c) [regarding the

right to be present at the excavation] and 14 [regarding marking its facilities] of the Texas One-Call

Statute?”; and (3) if so, did MasTec/Wilde and C&S each “then respond in accord with requirements

for excavators as described in Section 9(c) of the Texas One-Call Statute.” In the first question, the

jury found in the affirmative as to both MasTec/Wilde and C&S. In the second question, the jury




                                                 12
found in the affirmative. In the third question, the jury found that neither MasTec/Wilde nor C&S

had responded in accord with section 9(c).

               The district court rendered judgment on the verdict. Because MasTec/Wilde had

assumed all of C&S’s liabilities, the court imposed judgment against MasTec/Wilde for the damages

the jury had awarded against both affiliates. Against MasTec/Wilde, the district court awarded

CITGO $927,355.80 in past damages and $534,600.00 in future damages, amounts reflecting the

total percentages of responsibility that the jury had imposed against MasTec/Wilde and C&S for

negligence (30 percent + 50 percent = 80 percent) applied to the jury’s awards of past and future

negligence damages. Similarly, the court awarded CITGO $115,919.48 in past damages and

$66,825.00 in future damages from Bechtel, reflecting the 10 percent of negligence responsibility

that the jury had apportioned to that party. Further, based on the jury’s promissory estoppel findings

against MasTec/Wilde and C&S, the district court awarded CITGO $295,357.25 in trial-level

attorney’s fees, plus a total of another $75,000 in conditional appellate attorney’s fees. Finally the

court awarded prejudgment interest of $236,629.18 against MasTec/Wilde and $29,577.46 against

Bechtel, and assessed court costs against MasTec/Wilde.

               MasTec, C&S, and Bechtel appealed.


                                             ANALYSIS

               Appellants bring a total of fifteen issues that can be categorized into four groups:

(1) issues concerning the affirmative defense of immunity under the one-call statute; (2) an issue

challenging the imposition of negligence liability against them; (3) issues contesting the amount of




                                                 13
past and future damages awarded in the judgment; and (4) issues attacking the attorney’s fee award

and the underlying jury findings regarding promissory estoppel.


One-call statute

               As noted, the one-call statute has provided at all relevant times that “[a]n excavator

who has fully complied with this Act may not be liable for damage to an underground facility that

was not marked in accordance with this Act.” Former art. 9033, § 14(c). The district court

submitted the fact issues controlling the application of this defense in Question 12 of the charge. In

Question 12, the court instructed the jury as follows:


       You are instructed that Texas Underground Damage Prevention and Safety Act,
       commonly known as the “Texas One-Call Statute,” states as follows:

       SECTION 9: DUTY OF AN EXCAVATOR.

       (a)     A person who intends to excavate shall notify a notification center not earlier
               than the 14th day before the date the excavation is to begin or later than the
               48th hour before the time the excavation is to begin, excluding Saturdays,
               Sundays, and legal holidays. Provided, however, if an excavator makes a
               Saturday notification, the excavator may begin the excavation the following
               Tuesday at 11:59 a.m. unless the intervening Monday is a holiday. If the
               intervening Monday is a holiday, the excavator may begin the excavation the
               following Wednesday at 11:59 a.m.

       (b)     The notice required under this section shall include:

               (1)     the name of the person serving the notice;
               (2)     the location of the proposed area of excavation, including;
                       (A)     the street address, if available, and the location of the
                               excavation at the street address; or
                       (B)     if there is no street address, an accurate description using any
                               available designations such as the closest street, road, or
                               intersection;



                                                 14
               (3)     the name, address, and telephone number of the excavator or the
                       excavator’s company;
               (4)     the excavator’s field telephone number, if one is available;
               (5)     the starting date and time and the anticipated completion date of
                       excavation; and
               (6)     a statement as to whether explosives will be used.

       (c)     To have a representative present during the excavation, the operator shall
               contact the excavator and advise the excavator of the operator’s intent to be
               present during excavation and confirm the start time of the excavation. If the
               excavator wants to change the start time, the excavator shall notify the
               operator to set a mutually agreed-to time to begin the excavation.

       SECTION 14. DUTY OF OPERATOR TO PERSON EXCAVATING.

       (a)     Not later that the 48th hour after the time the excavator give[s] to the
               notification system notice of intent to excavate, excluding Saturdays,
               Sundays, and legal holidays, 11:59 a.m. on the Tuesday following a Saturday
               notification unless the intervening Monday is a holiday, or at a time agreed
               to by the operator and the excavator, each Class A underground facility owner
               shall mark the approximate location of its underground facilities at or near the
               site of the proposed excavation if the operator believes that marking the
               location is necessary.

       (b)     An operator shall refer to the American Public Works Association color
               coding standards when marking.

       (c)     An excavator who has fully complied with this Act may not be liable for
               damage to an underground facility that was not marked in accordance with
               the Act.


With the exception of two textual differences that are not material to this case, these

instructions tracked verbatim sections 9 and 14 of former article 9033, the version of the

one-call statute applicable to this case.7 See, e.g., Borneman v. Steak & Ale of Tex., 22 S.W.3d


       7
          The first difference was that the first sentence of section 9(a) omitted a qualifier found in
the statute, “Except as provided in sections 12 and 13 of this Act . . . .” Former art. 9033, § 9(a).
The second was in section 14(a). The instruction omitted the statutory deadline for the operator to

                                                  15
411, 413 (Tex. 2000) (“As a general rule, when a statutory cause of action is submitted, the charge

should ‘track the language of the provision as closely as possible.’”) (quoting Spencer v. Eagle Star

Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex. 1994)).

               Following these instructions, the district court submitted the following question:


       QUESTION NO. 12A

       Did the Defendants listed below give the notice required by Section 9(a) and 9(b) of
       the Texas One-Call Statute?

       Answer “Yes” or “No” as to each:

       MasTec/Wilde            _____

       C&S                     _____


Predicated on an affirmative finding as to either defendant, the jury was instructed to answer the

following:


       QUESTION NO. 12B

       Did CITGO respond in accord with Section 9(c) and 14 of the Texas One-Call
       Statute?

       Answer “Yes” or “No”:


Predicated on an affirmative answer to 12B, the jury was instructed to answer the following:




mark their facility applicable when an excavator makes a Saturday notification and the intervening
Monday is a holiday––Wednesday at 11:59 a.m. Id. § 14(a). It is undisputed that the excavation at
issue here occurred on a Friday.

                                                 16
       QUESTION NO. 12C

       Did the Defendants listed below then respond in accord with requirements for
       excavators as described in Section 9(c) of the Texas One-Call Statute?

       Answer “Yes” or “No” as to each:

       MasTec/Wilde           _____

       C&S                    _____


The jury found in the affirmative as to both MasTec/Wilde and C&S in Question 12A—that

each had “give[n] the notice required by Section 9(a) and 9(b) of the Texas One-Call Statute”—and

found in Question 12B that CITGO had “then respond[ed] in accord with Section 9(c) and 14 of

the Texas One-Call Statute,” but found in Question 12C that neither MasTec/Wilde nor C&S had

“then respond[ed] in accord with requirements for excavators as described in Section 9(c) of the

Texas One-Call Statute.” In light of these findings, the district court did not give effect to the

affirmative defense of immunity under the one-call statute.

               At trial, appellants objected to Question 12A, 12B, and 12C on the ground that

“the special interrogatory structure of the question does not comply with broad form requirements

that are currently dictated by the Texas rules and courts.” They tendered what they regarded as a

substantially correct version of the question containing the following interrogatories:


       Did the Defendants listed below fully comply with the Texas One-Call Statute?

       Answer “Yes” or “No” for each of the following:

       C&S                    _____

       MasTec/Wilde           _____

                                                    17
Predicated on an affirmative answer as to either defendant, the jury would then have answered the

following question:


       Did CITGO mark its pipeline in accordance with the Texas One-Call Statute?

       Answer “Yes” or “No”

       ________8


Appellants bring this complaint forward in their seventh issue on appeal, arguing that the district

court abused its discretion in failing to submit the controlling issues regarding immunity under the

one-call statute in broad form. They further contend on appeal that Question 12C “did not track the

statutory language at all” or “implied to the jury that Defendants were obligated to respond under

Section 9(c).” Even assuming that appellants preserved both complaints for appeal, we cannot

conclude that the district court abused its discretion.

               Our analysis of appellants’ contentions relating to the one-call statute turn, in the first

instance, on statutory construction. Statutory construction presents a question of law that we review

de novo. See State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). Our primary objective in

statutory construction is to give effect to the legislature’s intent. Id. We seek that intent “first and

foremost” in the statutory text. Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85 (Tex. 2006).

We consider the words in context, not in isolation. State v. Gonzalez, 82 S.W.3d 322, 327


        8
           Appellants’ proposed submission also contained a “further instruction” that “a joint
venture is a legal entity that meets the definition of a ‘person’ under the Texas One-Call Statute,”
with a definition of the essential elements of “joint venture.” Because we conclude that the district
court did not abuse its discretion in submitting Question 12, we need not address whether, as CITGO
contends, the proposed “joint venture” instruction was not in substantially correct form.

                                                  18
(Tex. 2002). We rely on the plain meaning of the text, unless a different meaning is supplied by

legislative definition or is apparent from context, or unless such a construction leads to absurd

results. City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex. 2008) (citing Texas Dep’t of

Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004); Taylor v. Firemen’s &

Policemen’s Civil Serv. Comm’n of City of Lubbock, 616 S.W.2d 187, 189 (Tex. 1981); University

of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 356 (Tex. 2004)); see Tex. Gov’t Code Ann.

§ 311.011 (West 2005) (“[w]ords and phrases shall be read in context and construed according to

the rules of grammar and common usage”).

               Section 14(c) of the one-call statute states that “[a]n excavator who has fully complied

with this Act may not be liable for damage to an underground facility that was not marked in

accordance with this Act.” Former art. 9033, § 14(c). Section 14(c) thus provides immunity from

“liability for damage to an underground facility” if an excavator can prove two elements: (1) the

“excavator . . . has fully complied with this Act”; and (2) the underground facility “was not marked

in accordance with this Act.” The term “fully complied” plainly denotes complete compliance with

the one-call statute in all respects, as contrasted with partial compliance or substantial compliance.

See United States v. Locke, 471 U.S. 84, 100-01 (1985) (discussing the concept of substantial

versus full compliance in the context of statutory deadlines); CenterPoint Energy Houston Elec.,

LLC v. Gulf Coast Coalition of Cities, 252 S.W.3d 1, 15 (Tex. App.—Austin 2008, pet. filed)

(“We presume that every word was deliberately chosen and that excluded words were left out on

purpose.”) (citing USA Waste Servs. of Houston, Inc. v. Strayhorn, 150 S.W.3d 491, 494

(Tex. App.—Austin 2004, pet. denied)). Whether or how an excavator “fully complied” with the



                                                 19
one-call statute begins with section 9 of the statute, titled “Duty of an excavator.” Section 9(a), as

discussed, requires an excavator to give at least 48 hours notice to a notification center of its intent

to excavate, while section 9(b) specifies the content of such notifications. Id. § 9(a), (b). Question

12A appropriately inquired whether MasTec/Wilde and C&S each gave “the notice required by

Section 9(a) and 9(b) of the Texas One-Call Statute?”

                A one-call notice in compliance with section 9(a) and (b), in turn, triggers an

operator’s duty under section 14 to “mark the approximate locations of its underground facilities at

or near the site of the proposed excavation.” Id. § 14(a), (b). Section 9(c) also provides that an

operator has a right “[t]o have a representative present during the excavation” if the

operator—presumably in response to the one-call notification it received after the excavator

complied with section 9(a) and (b)—“contact[s] the excavator” and (1) advises it of the operator’s

“intent to be present during excavation” and (2) “confirm[s] the start time of the excavation.” Id.

§ 9(c). Consistent with this statutory framework, Question 12B, conditioned upon an affirmative

finding in Question 12A that one-call notification was given, inquired whether CITGO “respond[ed]

in accord with Section 9(c) and 14 of the Texas One-Call Statute.” By answering “yes” to this

conjunctive submission, the jury found that CITGO complied with both the marking requirements

of section 14 and the conditions for invoking its right to be present at the excavation under

section 9(c).

                If an operator invokes its right to be present during the excavation by meeting

the conditions under section 9(c), as the jury found here, the excavator then has a mandatory duty

not to “change the start time” without “notify[ing] the operator to set a mutually agreed to time.”



                                                  20
See id. § 9(c). Whether MasTec/Wilde or C&S each complied with these duties was the focus of

Question 12C. That question was conditioned upon an affirmative response in Question 12B—i.e.,

that CITGO had invoked the duties under section 9(c)—and inquired whether each

“then respond[ed] in accord with requirements for excavators as described in Section 9(c) of the

Texas One-Call Statute.”

               In sum, the burden-shifting, conditioned sequence that the district court employed in

Question 12 tracked the statutory framework and properly submitted the fact issues whose resolution

controlled whether MasTec/Wilde and C&S were entitled to immunity from liability under the

one-call statute in this case. We disagree with appellants that the district court abused its

discretion in declining to submit the parties’ compliance with the one-call statute in the broad-form

manner they proposed. Although trial courts must submit fact issues to the jury in broad form

“whenever feasible,” Tex. R. Civ. P. 277, “‘it is not always practicable to submit every issue in a

case broadly,’ and broad-form submissions cannot be used to broaden the harmless error rule to deny

a party the correct charge for which it otherwise would be entitled.” Romero v. KPH Consolidation,

Inc., 166 S.W.3d 212, 230 (Tex. 2005) (quoting Harris Co. v. Smith, 96 S.W.3d 230, 235

(Tex. 2002)). Here, broad-form submission as proposed by appellants was not practicable for at least

two related reasons. First, appellants’ proposal omitted any issue or instruction regarding whether

CITGO had complied with its duties under section 9(c) to notify appellants that it desired to be

present during the excavation. CITGO was entitled to obtain a finding on that question as a basis

for imposing duties on appellants under section 9(c). Second, appellants’ proposed issue as to

whether C&S and MasTec/Wilde “fully complied” with the one-call statute would have subsumed



                                                 21
whether appellants (1) made the one-calls required under sections 9(a) and (b), and (2) complied

with any duties under section 9(c). An affirmative finding on such an issue would leave an appellate

court unable to determine whether the jury found that (1) appellants complied with sections 9(a) and

(b) and CITGO did not comply with section 9(c) so as to give rise to appellants’ duties under that

provision, or (2) appellants complied with sections 9(a) and (b), CITGO complied with section 9(c),

and appellants complied with section 9(c). As CITGO contends, “[t]he questions as requested by

Appellants would not have permitted proper review of the case on appeal.” We overrule appellants’

seventh issue.

                 In their fifth issue, appellants argue that the district court erred in failing to disregard

the jury’s answers to Questions 12B and 12C and render judgment that CITGO take nothing.

Appellants argue principally that the evidence conclusively establishes that they complied with

the notification requirements of section 9(a) and (b) and that CITGO failed to comply with

section 14 by failing to mark the CASA Pipeline. However, it not clear that appellants are

challenging the jury’s other finding in Question 12B that CITGO complied with section 9(c) so as

to give rise to MasTec/Wilde and C&S’s duties under that provision. As for whether MasTec/Wilde

and C&S complied with those duties, appellants contend only that “the jury’s answer to 12C should

be disregarded” because “[t]hough the jury found that Defendants failed to notify the pipeline

operator of the excavation start time, the record shows Defendants gave numerous notifications

within the time frame required by statute.” In support, appellants cite to the copies of the one-call

notifications in evidence, which, it emphasizes, “Citgo conceded that it received.” Although copies

of the one-call notifications may be probative of whether MasTec/Wilde or C&S complied with the



                                                     22
notification requirements of section 9(a) or (b), so as to support the jury’s findings in Question 12A,

the jury’s finding in 12C instead turned on the nature of the communications between CITGO and

Ferguson after CITGO’s receipt of Ferguson’s one-call notifications.

               In any event, we conclude that the evidence was legally and factually sufficient to

support the jury’s findings in 12B that CITGO “respond[ed] in accord with Section 9(c)” and in 12C

that neither MasTec/Wilde nor C&S “respond[ed] in accord with requirements for excavators as

described in Section 9(c).”

               When a party challenges the legal sufficiency of the evidence supporting an adverse

finding on an issue on which it has the burden of proof, that party must demonstrate on appeal

that the evidence conclusively established, as a matter of law, all vital facts in support of the issue.

Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). In conducting a legal sufficiency

review of the evidence, a court must consider all of the evidence in the light most favorable to the

fact finding and indulge every reasonable inference that would support it. City of Keller v. Wilson,

168 S.W.3d 802, 822 (Tex. 2005).

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

which he has the burden of proof, he must demonstrate on appeal that the adverse finding is against

the great weight and preponderance of the evidence. Dow Chem. Co., 46 S.W.3d at 241. The court

of appeals must consider and weigh all of the evidence, and can set aside a finding only if the

evidence is so weak or if the finding is so against the great weight and preponderance of the evidence

that it is clearly wrong and unjust. Id.




                                                  23
               As previously described, CITGO presented evidence that, in response to one-call

notifications and in a face-to-face meeting, it had repeatedly informed Clint Ferguson of its intent

to be present at any excavation near the CASA Pipeline and that Ferguson and CITGO had an

ongoing understanding that his crews would not excavate near the CASA Pipeline without prior

notice and a CITGO representative present. Further, in the context of this alleged understanding,

CITGO’s Sam Bennet testified that he responded to a one-call notification during the morning of the

accident by calling Ferguson and obtaining Ferguson’s assurances that his crews would be working

several miles away from the pipeline that day. In terms of section 9(c), CITGO had contacted

Ferguson, informed Ferguson of its intent to be present when his crews were excavating near the

CASA Pipeline, and confirmed that there would be no “start time” for such excavation that day.9


       9
             In an amicus curiae brief, the National Utility Contractor’s Association argues that
“in order to establish compliance with the statute, Citgo had to prove that it advised Appellants of
its intent to be present during the excavation that actually occurred and that Citgo confirmed the start
time of that excavation” and that “[o]nly if Citgo complied with these requirements and there was
a confirmed start time, would Appellants have had a duty to notify Citgo that they wanted to change
the start time and reach an agreement as to when to begin excavation.” We generally agree that the
burden is initially upon the operator to comply with the requirements of section 9(c) before any
duties arise under it on the part of the excavator. As we have explained, the district court correctly
placed this burden in the jury charge. The Association further urges that “there is no evidence or
insufficient evidence that Citgo ever made a request to be present during the excavation that actually
took place near the Luling site or that Citgo complied with its obligation to ‘confirm the start time
of the excavation.’” (Emphasis added). The Association’s apparent premise is that an operator’s
confirmation that no excavation will be occurring at a location on a particular day does not suffice
to “confirm the start time” of an excavation. Similarly, it suggests that if the excavator subsequently
reneges and excavates there anyway without informing the operator, the operator will have failed to
advise the excavator of its intent to be present “during the excavation that actually took place”
despite having been assured that the excavation would not be occurring at all. To the contrary, we
conclude from the text and structure of section 9(c) that an operator would necessarily “confirm the
start time” of an excavation if it confirmed that the excavator would start no excavation at a
particular location on a particular day, to the same extent as if the excavator provided a time at which
it actually would start excavating. In either case, if the excavator subsequently decided to deviate
from that understanding, section 9(c) would require it to “notify the operator to set a mutually
agreed-to time.”

                                                  24
Although Ferguson disputed Bennett’s version of this conversation, the jury could have reasonably

credited Bennett’s account, and it was the jury’s province to resolve the conflict in the manner it did.

See City of Keller, 168 S.W.3d at 819, 822 (we may not substitute our judgment for the jury’s, and

we must defer to the jury’s determinations of the credibility of the witnesses, the weight to be

given the testimony, and the resolution of evidentiary conflicts.) The evidence was sufficient

to support the jury’s finding in Question 12B that CITGO had complied with section 9(c). As

for Question 12C, the evidence is sufficient, if not undisputed, that CITGO was never notified

that a MasTec/Wilde rip crew would, contrary to Ferguson’s statements, be excavating near the

pipeline after all.

                Because MasTec/Wilde and C&S could not have “fully complied with the Act”—the

first element of immunity under the one-call statute—if they failed to comply with duties under

section 9(c), the jury’s findings regarding section 9(c) in Questions 12B and 12C support the district

court’s judgment in which it refused to give effect to appellants’ immunity defense. This is true

regardless of whether the evidence also supports the jury’s additional finding in Question 12B that

CITGO complied with section 14. Although that finding would go to the second element of

immunity—whether the CASA Pipeline was “marked in accordance with the Act,” see former art.

9033, § 14(c)—it has no bearing on an excavator’s duties under section 9(c). The legislature, again,

made those duties contingent upon an operator’s compliance with the conditions in section 9(c), not

section 14. We overrule appellants’ fifth issue.10


        10
            CITGO brings a cross-point in which it contends the evidence is legally and factually
sufficient to support the jury’s findings in Question 12A that both MasTec/Wilde and C&S gave
“the notice required by Section 9(a) and 9(b) of the Texas One-Call Statute.” Specifically, CITGO

                                                  25
               Finally, in their sixth issue, appellants urge that CITGO’s recovery should be barred

as a matter of “public policy” because, they again urge, CITCO failed to mark the CASA Pipeline

in compliance with section 14 of the one-call statute. We observe that the legislature—the principal

arbiter of public policy under our tripartite system of government—has not seen fit to provide

excavators immunity based solely on the failure of an operator to mark its underground facilities.

Instead, the excavator must “fully comply” with the statute. See former art. 9033, § 14(c). This

includes section 9(c). The gravamen of appellants’ argument is that we should judicially eliminate

or ignore one of the two statutory elements of one-call statute immunity.

               Appellants attempt to justify such a holding by invoking common-law concepts that

have been applied to bar recovery under an insurance policy where the covered loss was caused by

the policy beneficiary’s own intentional conduct. See Norman v. State Farm Fire & Cas. Co.,

804 F.2d 1365, 1366 (5th Cir. 1986). Equating CITGO’s alleged failure to mark the CASA Pipeline

as required by section 14 to such conduct as arson, appellants reason that CITGO should similarly

be barred from “benefitting from its own wrongdoing” by recovering damages from the pipeline

rupture under negligence and promissory estoppel theories. Appellants cite no authority for

extending the concept of Norman in this manner, and we are aware of none. We also observe

that Texas law already accounts for the type of “wrongdoing” of which appellants complain

through proportionate responsibility. Here, the jury attributed ten percent of the negligence



argues that there is no evidence that anyone other than Clint Ferguson, a C&S employee, made
one-call notifications in connection with the Texas Loop Project work and that these calls by C&S
did not suffice when the “excavator” who damaged its pipeline was MasTec/Wilde. Because we
have overruled appellants’ challenge to the jury’s findings in Question 12B and 12C, we need not
reach CITGO’s cross-point.

                                                26
that proximately caused the pipeline rupture to CITGO, and reduced its recovery accordingly. In

sum, appellants urge us to adopt a form of immunity or absolute statutory defense that heretofore has

been recognized by neither the legislature nor Texas common law. We reject that invitation, and

overrule appellants’ sixth issue.


Negligence liability

               In their fourth issue, appellants contend that the jury’s apportionment of fault under

the negligence findings was against the great weight and preponderance of the evidence and

was manifestly unjust. As discussed, the jury apportioned responsibility 50 percent to C&S,

30 percent to MasTec/Wilde, 10 percent to Bechtel, and 10 percent to CITGO. Appellants urge that

“the great weight and preponderance of the evidence establishes that CITGO was at least 51% at

fault,” a percentage that would bar CITGO from recovering in negligence. See Tex. Civ. Prac. &

Rem. Code Ann. § 33.001 (West 2008).

               If a jury’s verdict is so against the great weight and preponderance of the evidence

as to be manifestly unjust, we must reverse the judgment. See In re King’s Estate, 244 S.W.2d 660,

661 (Tex. 1951). In determining whether a finding was against the great weight and preponderance

of the evidence, the court of appeals must consider and weigh all of the evidence, and can set

aside a finding only if the evidence is so weak that it is clearly wrong and unjust. Dow Chem. Co.,

46 S.W.3d at 241. Appellants emphasize evidence that CITGO received one-call notifications

regarding the ongoing Texas Loop Project excavation, that CITGO never located or marked the

actual location of the CASA Pipeline, that Schulle placed and left in place stakes that

created a misleading impression regarding the pipeline’s location, and that CITGO and not

                                                 27
appellants had access to the maps and other information from which the pipeline’s actual location

could have been determined. Indeed, CITGO does not challenge the jury’s finding that its was

contributorily negligent.

               However, the jury also heard evidence CITGO and Ferguson had an understanding

that Ferguson’s crews would not excavate near the CASA Pipeline without prior notice to CITGO

and CITGO’s representatives being present, a factor that the jury reasonably could have considered

in drawing inferences from the acts or alleged omissions of CITGO personnel that appellants

attack.11 There was also evidence that both Ferguson and Bechtel employees had been informed that

CITGO had not yet located the pipeline’s precise location. Nonetheless, both the rip cat operator and

his supervisor testified that they had not been informed the pipeline had not been located. The jury

also heard evidence of a near-miss with another underground facility on May 6 that the jury could

reasonably have concluded was caused by similar communication breakdowns between Ferguson

and his crews. We cannot conclude that the jury’s failure to allocate at least 51 percent of fault to

CITGO is against the great weight and preponderance of the evidence and is manifestly unjust. See

Rosell v. Central W. Motor Stages, Inc., 89 S.W.3d 643, 659-60 (Tex. App.—Dallas 2002,

pet. denied) (the determination of negligent parties’ proportionate responsibility is a matter within

the jury’s sound discretion).




       11
           For example, Bentley testified that he did not believe it necessary to readjust the stakes
after determining on May 6 that pipeline lay to the east of the middle stake because CITGO had been
assured that no excavation would take place at the location without prior notice.

                                                 28
Negligence damages

       “Tulsa overhead”

                In their third issue, appellants attack the jury’s award of past negligence damages on

the basis that there is legally and factually insufficient evidence to support the full amount of that

award. At trial, CITGO presented spreadsheets, backup documentation, and testimony from a safety

environmental manager, Kenny Holtgreve, indicating that CITGO had incurred a total of $1,159,194

in expenses from the pipeline rupture and gasoline spill until date of trial. The jury ultimately

awarded this entire amount as past negligence damages.

                CITGO’s calculations presented to the jury included roughly $80,000 it claimed in

emergency response costs, $766,000 in remediation costs, $10,000 in lost product, and $15,000

in payments to the adjoining landowner to gain access to the property.               The remaining

amount—$287,780.76—was a figure intended to reflect the value of employee time, equipment,

materials, and other overhead that CITGO had to divert from normal business operations

when responding to the large gasoline spill.           It is only the latter component of past

negligence damages—which the parties respectively term “project management expenses” or

“Tulsa overhead”12—that appellants challenge.

                Holtgreve testified regarding the bases for CITGO’s claim for $287,780.76 in

“Tulsa overhead.” He testified that CITGO incurred significant additional internal costs when

having to divert employees and company resources from normal business operations to respond to

the spill. Holtgreve, for example, observed that “[o]ne hundred percent of my time” was devoted


       12
            This is the term CITGO uses in its spreadsheet to identify this category of expenses.

                                                 29
to the project in the spill’s immediate aftermath. He added that “people in the operations area in

the field,” such as “Sam Bentley and his people” were involved in the project, as well as

“accounting people who would have to keep track of the invoices,” “administrative people who

would get the invoices to process them,” and “other managers who would manage, oversee what we

did.” As Holtgreve put it, “[i]f the person’s time is allocated to do this project instead of his normal

job, this is time lost by Citgo. Therefore, that is money that Citgo has lost because of the event.”

Holtgreve further noted that the work required increased use of CITGO telephones and other

equipment. To reflect the value of these lost company resources, Holtgreve explained, CITGO

imposed a percentage surcharge or mark-up in the same manner that it did when performing projects,

such as relocating pipelines, for a third party.

                Holtgreve explained that on such projects, CITGO would ordinarily charge a

management fee of 34 percent that “covers the staff type of functions, the accounting functions, the

legal functions, the human resource functions, management functions that are not directly associated

to Citgo, because Citgo works for Citgo and we are not in the business of doing projects for other

companies.” Holtgreve opined that such fees were “a common practice in the industry.” To

approximate the value of its employees’ time and overhead expended in the spill response and

remediation, CITGO, essentially treating the gasoline spill as if it was a project being performed for

a third party, multiplied those costs by 34 percent, yielding the $287,780.76 figure.

                Appellants argue that there is legally and factually insufficient evidence that CITGO

incurred $287,780.76 in lost employee time and resources. They point out that CITGO did not

attempt to quantify or prove the actual amount or value of its lost overhead even though Holtgreve



                                                   30
acknowledged that CITGO’s accounting department could have tracked those figures. As for the

basis of the 34 percent mark-up, Holtgreve conceded that he had no personal knowledge regarding

how that percentage figure had been derived, explaining only that “[i]t’s a number that [CITGO]

had generated in the past based off of some study that [it] had done somewhere in the past” and

“was associated with the projects when I started dealing with them.” CITGO did not elaborate

further regarding the origins of the “Tulsa overhead.”

                   CITGO responds that there was sufficient evidence that CITGO incurred substantial

lost employee time and resources when responding to the pipeline rupture. It also suggests that

appellants waived any complaint regarding the origins of the “Tulsa overhead” because they did not

preserve objections to the admission of Holtgreve’s testimony or the submission of a broad-form

question on negligence damages. Question 3 of the charge asked: “What sum of money, if paid not

in cash, would fairly and reasonably compensate CITGO for the damages incurred in the past

resulting from the rupture of the CASA Pipeline.” The jury was instructed to consider the reasonable

costs in Caldwell County, Texas (1) “to restore the CASA Pipeline to the condition it was in

immediately before the occurrence in question” and (2) “to respond to and remediate the spill,”

including “reasonable and necessary clean-up costs and monitoring expenses.” Because Holtgreve’s

testimony regarding lost employee time and the 34 percent mark-up was in evidence and the

charge permitted the jury to consider it, CITGO reasons, appellants cannot now complain that

the jury did so.

                   In this regard, both parties emphasize that appellants objected to and obtained an

instruction in the past promissory estoppel damages question, “Do not include Tulsa overhead.” In



                                                   31
response to appellants’ objection, the district court stated that it “didn’t hear any evidence” of “what

the 34 percent was” or how this fee CITGO charged to third parties was probative of damages

CITGO incurred in connection with the spill. However, appellants did not request a similar

instruction in the otherwise-parallel question for past negligence damages. As it turned out, the jury,

while awarding $1,159,194.75 in past negligence damages, awarded only $871,413.99 in past

promissory estoppel damages—a difference of $287,780.76, corresponding precisely to the amount

of “Tulsa overhead.”

                On this record, sufficient evidence would support the jury’s award of $1,159,194.75

in past negligence damages only if there was sufficient evidence that CITGO incurred at least

$287,780.76 in “Tulsa overhead.” The evidence supports no more than speculation as to that fact.

Although Holtgreve did allude generally to “people in the operations area in the field,”

“accounting people,” “administrative people,” and “other managers” having to devote all of their

time to the project for some unspecified period after the accident, he provided no basis to quantify

the value of that time, such as salaries and the like, other than the 34 percent mark-up that CITGO

used on third-party projects. CITGO’s methodology in determining that percentage was never

explained. Nor does CITGO refer us to any other evidence in the record from which the

jury reasonably could have inferred that the company had incurred at least $287,780.76 in

lost employee time or overhead in connection with the pipeline rupture. Consequently, the evidence

is legally insufficient to support the jury’s award of the full amount of $1,159,194.75 in past

negligence damages.




                                                  32
                Appellants do not dispute, however, that legally and factually sufficient evidence

supports the award of the other components of past negligence damages, which total $871,413.99.

Where, as here, we conclude that there is insufficient evidence to support the full amount of a

damages award but sufficient evidence to support a lesser award, we may suggest a remittitur

See Spring Windows Fashions Div., Inc. v. The Blind Maker, 184 S.W.3d 840, 889-90

(Tex. App.—Austin 2006, pet. granted, remanded by agr.); Tex. R. App. P. 46.3. The party

prevailing in the trial court must be given the option of accepting the remittitur or having the case

remanded for a new trial. Spring Windows, 184 S.W.3d at 889-90. Accordingly, we will suggest

a remittitur of $287,780.76, the difference between the jury’s award of $1,159,194.75 in past

negligence damages and the amount of such damages that the evidence supports.


       Future damages

                In their second issue, appellants argue that CITGO cannot recover future damages

because the testimony of CITGO’s damages expert, David Sweeten, was unreliable and should have

been excluded.13 Appellants brought a pretrial motion to exclude Sweeten’s testimony as unreliable

on grounds that there was no basis for an assumption that the “plume” of benzene and MTBE14

contamination from the gasoline that had escaped the ruptured CASA Pipeline had extended into the

surrounding area beyond Plum Creek, an area waterway. If Sweeten’s testimony had been properly

excluded, appellants contend, there is no evidence of future damages.

       13
            Appellants asserted this challenge against the jury’s findings regarding both
future negligence and future promissory estoppel damages. As to each, the jury awarded the
sum of $668,250.00.
       14
            MTBE stands for methyl-tertiary-butyl-ether, a common additive to gasoline.

                                                 33
               A trial court’s decision to admit or exclude expert testimony is reviewed for an abuse

of discretion. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001). “The test for abuse

of discretion is whether the trial court acted without reference to any guiding rules or principles.”

E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995). If a party opposes

and objects to the admission of expert testimony, the proponent bears the burden of demonstrating

its admissibility. Robinson, 923 S.W.2d at 557.

               Expert testimony is admissible if (1) the expert is qualified, and (2) the testimony is

relevant and based on a reliable foundation. Wilkins, 47 S.W.3d at 499; Robinson, 923 S.W.2d at

556. Scientific testimony is unreliable if it is not grounded “in the methods and procedures of

science,” and amounts to no more than a “subjective belief or unsupported speculation.” Robinson,

923 S.W.2d at 557 (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590 (1993)).

Expert testimony is also unreliable if “there is simply too great an analytical gap between the data

and the opinion proffered.” Gammill v. Jack Williams Chevrolet, 972 S.W.2d 713, 727 (Tex. 1998)

(quoting General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)).

               Factors used by courts to determine whether expert testimony is reliable include:


       1.      the extent to which the theory has been or can be tested;

       2.      the extent to which the technique relies upon the subjective interpretation of
               the expert;

       3.      whether the theory has been subjected to peer review and/or publication;

       4.      the technique’s potential rate of error;

       5.      whether the underlying theory or technique has been generally accepted as
               valid by the relevant scientific community; and

                                                 34
       6.      the non-judicial uses which have been made of the theory or technique.


Robinson, 923 S.W.2d at 557. These factors are non-exclusive and flexible. Id.

               Sweeten testified concerning two estimates of future clean-up costs that he had

prepared. In his first estimate, which he had prepared in early 2004, Sweeten calculated total future

costs as $668,250.00. In his second estimate, which he prepared in November 2004, Sweeten revised

these calculations in light of intervening developments to yield at total of $1,270,000.00 in estimated

future clean-up costs. The focus of appellants’ challenge is Sweeten’s assumption in his second cost

estimate that contamination had extended from the rupture site beyond Plum Creek. Appellants

attack this assumption in light of Sweeten’s admission that he had not completed a delineation of

the plume beyond the creek.

               The jury ultimately awarded $668,250.00 in future damages under both CITGO’s

negligence and promissory estoppel theories, an amount corresponding precisely to Sweeten’s

first cost estimate. Consequently, if Sweeten’s testimony regarding his first cost estimate is relevant,

is reliable, and was properly admitted, that evidence alone could support the jury’s future damages

award. It is debatable whether appellants have preserved any complaint regarding this aspect of

Sweeten’s testimony, as their challenge has been focused entirely on Sweeten’s assumptions

underlying his second cost estimate. Nonetheless, even assuming that appellants preserved this

challenge, we conclude that the district court did not abuse its discretion in admitting Sweeten’s

testimony regarding his first cost estimate.

               Sweeten’s first cost estimate was based on an area on the spill side of Plum Creek,

on which well testing had shown that MTBE and benzene were above acceptable TCEQ-approved

                                                  35
levels. The data retrieved from these temporary wells included points within a specific area between

the release site and Plum Creek and exhibited levels of both MTBE and benzene that exceeded the

TCEQ acceptable levels. These data points created a circular area of contamination from which

Sweeten calculated the estimated clean-up costs. Applying his experience to these data points,

Sweeten testified to future environmental clean-up costs totaling $668,250.00.

               According to the report prepared by Sweeten as well as his accompanying testimony,

some of the factors he considered in arriving at the $668,250.00 estimate were:


       •       Groundwater monitoring and reporting: collecting semi-annual groundwater
               samples from the permanent monitoring wells, as required by TCEQ for the
               life of the clean-up project;

       •       Laboratory costs: costs incurred from submission of the gathered samples to
               a lab for analysis;

       •       Pilot testing, aquifer pump test, and remedial design: tests to determine
               methods of running short-scale or short-duration tests to determine the
               appropriate technology for interim corrective action, as required by TCEQ;

       •       Submission of APAR (Affected Property Assessment Report) or risk
               assessment: compilation of all collected data;

       •       Prepare response action plan (RAP): preparation of a report, as required by
               the TCEQ;

       •       Prepare site-specific discharge permit: costs incurred in obtaining a permit
               to pump the water out so that contaminated water does not reach Plum Creek;

       •       Remedial system design, capital equipment and construction: based on the
               data gathered, a report setting out the response action plan, including capital
               costs for equipment to be used; and

       •       General project management regulatory interface: managing the tasks and
               coordinating the people and equipment, including communications with
               TCEQ.

                                                 36
Sweeten testified that he then took the above line items and projected them out over the next

few years, to the extent that they were ongoing events. Sweeten also testified that he had prepared

similar cost estimates for CITGO on another pipeline project and on other projects for other clients

and that, based on this experience, he was generally familiar with how much these clean-up

procedures cost.

               Although there had not yet been a “complete delineation” such that CITGO did not

yet know the “full extent” of the problem, some testing and delineation activities had been

completed—notably, those in the area of the concentration circles on which Sweeten’s first cost

estimate was based. Even assuming that appellants are correct in their assertion that there was no

evidence how far the contamination extended, there was at least evidence that the area contained in

the concentration circles—and the area on which Sweeten’s first cost estimate was based—was

contaminated according to TCEQ standards. Contrary to appellants’ assertion, Sweeten agreed that

he needed more information to determine a final remedial technology, not that he needed more

information to create a reliable cost estimate as to the designated area. With the data points available

to Sweeten, he was able to create a reliable initial cost estimate, which projected clean-up costs to

be $668,250.00. Although the full extent of the contamination may have been unknown at the time,

the figure of $668,250.00 was based on known, objective data points. We, therefore, conclude that,

based on Sweeten’s experience and the known data points, his testimony with respect to the initial

cost estimate was reliable, and the district court acted within its discretion in admitting it. See

Gammill, 972 S.W.2d at 726 (“Experience alone may provide a sufficient basis for an expert’s

testimony”). Accordingly, we overrule appellants’ second issue.



                                                  37
Attorney’s fees

                In their remaining nine issues, appellants challenge the district court’s award of

$295,357.25 in trial-level attorney’s fees and another $75,000 in conditional appellate attorney’s

fees. This award was based on the jury’s favorable findings regarding CITGO’s promissory

estoppel theory of recovery under 38.001(8) of the civil practice and remedies code, see

Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8) (West 2008) (authorizing attorney’s fees for claims

for “an oral or written contract”), and the evidence that the district court heard regarding the amount

of such fees. Appellants assert essentially four types of challenges to the attorney’s fee award.

                First, appellants bring a number of issues attacking CITGO’s right to recover under

a promissory estoppel theory. Appellants argue that CITGO presented no evidence of any damages

compensable under a promissory estoppel theory,15 that the evidence is legally and factually

insufficient to support the jury’s finding that CITGO reasonably relied on any promise to its

detriment,16 that CITGO’s “promissory estoppel” claim “sounded in tort,”17 and that CITGO’s

recovery in negligence eliminates any “injustice” that would justify the application of the promissory

estoppel doctrine.18    See, e.g., Trammel Crow Co. No. 60 v. William Jefferson Harkinson

and Jeff Harkinson Investments, Inc., 944 S.W.2d 631, 636 (Tex. 1997) (promissory estoppel



       15
            Appellants’ thirteenth issue.
       16
            Issue twelve.
       17
          Issue nine. In fact, CITGO had sought submission of a negligent misrepresentation theory,
to which appellants objected on the ground that it had not been pled. The district court refused the
submission, and CITGO does not complain of that ruling on appeal.
       18
            Issue eleven.

                                                  38
“may apply . . . if injustice can be avoided only by enforcement of the promise”). Appellants also

urge that the jury’s contributory negligence finding against CITGO bars its recovery under

promissory estoppel as a matter of law19 and, relatedly, that the district court abused its discretion

in refusing to submit an “unclean hands” instruction to the jury.20

                 In the alternative, in their eighth issue, appellants argue that a promissory estoppel

claim is not a claim for “an oral or written contract” that can support an award of attorney’s fees

under section 38.001(8) of the civil practice and remedies code.21 In the further alternative, in their

first issue, appellants urge that CITGO cannot “mix and match” recovery of actual damages based

on its negligence theory and attorney’s fees under its promissory estoppel theory, but must be

required to elect to recover under only one of the theories. See JHC Ventures, L.P. v. Fast Trucking,

Inc., 94 S.W.3d 762, 774 (Tex. App.—San Antonio 2002, no pet.).22 Finally, in their fifteenth issue,



       19
            Issue ten.
       20
            Issue fourteen.
       21
              As appellants emphasize, Texas courts currently are split on that question.
Compare Doctors Hosp. 1997, L.P. v. Sambuca Houston, L.P., 154 S.W.3d 634, 635-38
(Tex. App.—Houston [14th Dist.] 2004, pet. abated) (holding that attorney’s fees are not recoverable
under section 38.001(8) for a promissory estoppel claim because such claims presuppose no
“oral or written contract”) (quoting Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d
212, 226 (Tex. 2002) (“promissory estoppel doctrine presumes no contract exists”)), with Preload
Tech., Inc. v. A.B. & J. Constr. Co., 696 F.2d 1080, 1094-95 (5th Cir. 1983) (Texas law) (upholding
award of attorney’s fees for promissory estoppel claim enforcing a promise that the court compared
to an option contract). In unpublished opinions, this Court had upheld attorney’s fee awards on
promissory estoppel claims. See Safe Env’t v. Pelzel & Assocs., Inc., No. 03-98-00721-CV, 1999
Tex. App. LEXIS 7628 (Tex. App.—Austin 1999, no pet.) (mem. op.).
       22
            CITGO disputes this conclusion, but maintains that if it must elect between the two
theories, it would recover against MasTec/Wilde and C&S under promissory estoppel (including
attorney’s fees) and against Bechtel in negligence.

                                                  39
appellants complain that CITGO failed to segregate its attorney’s fees among valid and invalid

grounds of recovery.

               We agree with appellants that CITGO cannot recover under a promissory estoppel

theory because CITGO presented no evidence of the types of damages that are compensable under

such a theory. As it has been recognized by the Texas Supreme Court, “[t]he function of the

doctrine of promissory estoppel is . . . defensive in that it estops a promisor from denying the

enforceability of the promise.”       See Wheeler v. White, 398 S.W.2d 93, 96 (Tex. 1965)

(citing Restatement (Second) of Contracts § 90 (1981)); see also In re Weekley Homes, L.P.,

180 S.W.3d 127, 133 (Tex. 2005) (“we have long recognized . . . the defensive theory of promissory

estoppel.”). That is, promissory estoppel prevents a promisor who has induced substantial action

or forebearance by another from denying that promise if “injustice can be avoided only by

enforcement,” id. (citing Harkinson, 944 S.W.2d at 636), but “it does not create a contract right that

does not otherwise exist,” Sun Oil Co. (Delaware) v. Madeley, 626 S.W.2d 726, 734 (Tex. 1981);

see Hruska v. First State Bank of Deanville, 747 S.W.2d 783, 785 (Tex. 1988). Rather, it merely

“prevents a party from insisting upon his strict legal rights”—i.e., the right to avoid his promise as

not contractually binding—“when it would be unjust to allow him to enforce them.” In re Weekley

Homes, L.P., 180 S.W.3d at 133 (quoting Wheeler, 398 S.W.2d at 96).

               Although promissory estoppel may be the basis for an affirmative claim, Wheeler,

398 S.W.2d at 96, the supreme court has restricted the types of damages a promissory estoppel

plaintiff can recover to “enforce” a promise: “the promisee is to be allowed to recover no more than

reliance damages measured by the detriment sustained.” Wheeler, 398 S.W.2d at 97. “Reliance



                                                 40
damages, similar to out-of-pocket recovery, reimburse one for expenditures made toward the

execution of the contract in order to restore the status quo before the contract.” Hart v. Moore,

952 S.W.2d 90, 97 (Tex. App.—Amarillo 1997, pet. denied); see Restatement (Second) of Contracts

§ 349 (reliance damages “includ[e] expenditures made in preparation for performance or in

performance, less any loss that the party in breach can prove with reasonable certainty the injured

party would have suffered had the contract been performed”); see also Quigley v. Bennett,

227 S.W.3d 51, 56 (Brister, J., concurring and dissenting) (“reliance damages” for fraud

“compensate for the plaintiff’s out-of-pocket expenditures”). In this way, reliance damages protect

a promisee’s “reliance interest” in a contract or promise, or his interest in being reimbursed for loss

caused by reliance on the promise by being put in as good a position as he would have been had the

contract not been formed or promise relied upon. Restatement (Second) of Contracts §§ 344, 349;

see Quigley, 227 S.W.3d at 56 (Brister, J., concurring and dissenting); O’Farrill Avila v. Gonzalez,

974 S.W.2d 237, 247 (Tex. App.—San Antonio 1998, pet. denied).

               Reliance damages are distinguished from expectancy or “benefit-of-the-bargain”

damages, which serve to protect the promisee’s “expectation interest,” or his interest in having

the benefit of his bargain by being put in as good a position as he would have been had the

contract or promise been performed. Restatement (Second) of Contracts § 344. Consequently,

expectancy damages like lost profits, for example, are not recoverable based on promissory estoppel.

See Sun Oil Co., 626 S.W.2d at 734 (“The damages recoverable by a party claiming estoppel are not

measured by the profits that such party’s reliance led him to expect, but instead are limited to

the amount necessary to compensate that party for a loss already suffered.”); Fretz Constr. Co.

v. Southern Nat’l Bank of Houston, 626 S.W.2d 478, 483 (Tex. 1981) (“Damages recoverable in a

                                                  41
case of promissory estoppel are not the profit that the promisee expected, but only the amount

necessary to restore him to the position he would have been in had he not acted in reliance on the

promise.”). Similarly, consequential damages resulting from the failure to perform the promise are

likewise not recoverable. Id. The limitation of promissory estoppel damages solely to reliance

damages, rather than compensating for the loss of the full benefit of the breached or unperformed

contract or promise, reflects the view that “[s]ince the promisee in such cases is partly responsible

for his failure to bind the promisor to a legally sufficient contract, it is reasonable to conclude that

all that is required to achieve justice is to put the promisee in the position he would have been in had

he not acted in reliance upon the promise.” Wheeler, 398 S.W.2d at 97.

               As its promissory estoppel “reliance damages,” CITGO obtained jury awards for its

damages resulting from the pipeline rupture. Question 10 asked the jury to determine the sum of

money that “would fairly and reasonably compensate CITGO for the damages incurred in the past

resulting from the detrimental reliance found in Question 9” (the promissory estoppel liability issue),

including “the reasonable cost in Caldwell County, Texas to restore the CASA Pipeline to the

condition it was in immediately before the occurrence” and “to respond to and remediate the spill.”

With the exception of the “Tulsa overhead” instruction, previously discussed, Question 10

paralleled the question on past negligence damages, and the jury awarded damages that differed

only with respect to the “Tulsa overhead” amount. Similarly, Question 11 asked the jury to

determine the sum of money that “would fairly and reasonably compensate CITGO for the

damages which in reasonable probability will be incurred in the future resulting from the rupture of

the CASA Pipeline found in Question 9.” The jury awarded identical future damages for both

negligence and promissory estoppel.

                                                  42
               CITGO did not present evidence of “reliance damages” apart from the damages it

attributes to the pipeline rupture. In CITGO’s view, the pipeline rupture was “a direct result of its

reliance on Clint Ferguson’s statement that Appellants’ crews would not be working near CITGO’s

pipeline that day” because it “acted in reliance on Clint Ferguson’s promise and did not send out a

representative to demand and supervise the uncovering of the pipeline prior to excavation.” In turn,

it contends that “[t]he environmental damages found by the jury were a direct result of the line

rupture from responding to the emergency, repairing the line, remediation of the soil, bioremediation

of the groundwater, testing and monitoring, to future monitoring and remediation to remove the

contamination.” We cannot agree that the damages from the pipeline rupture are reliance damages

that CITGO can recover under its promissory estoppel theory.

               CITGO’s promissory estoppel damages theory is that it should recover its costs of

repairing the pipeline and cleaning up the spill because (1) if Ferguson had kept his promise to give

CITGO prior notice before it excavated near the CASA Pipeline, (2) CITGO would have sent a

representative to the site, (3) who, in turn, would have located and uncovered the pipeline, and

(4) ensured that any excavation on the site would not have ruptured the pipeline. CITGO’s damages

are not reimbursement for any amounts it expended in reliance on the promises, but compensation

for consequential losses CITGO claimed it incurred when appellants failed to perform their promises.

Such damages are in the nature of expectancy damages: they place CITGO in the position it claims

it would have been had the promises been kept. Such damages are not recoverable through

promissory estoppel. See Sun Oil Co., 626 S.W.2d at 734; Fretz Constr. Co., 626 S.W.2d at 483.

               Because there was no evidence that CITGO incurred reliance damages that can

support recovery under its promissory estoppel theory, we sustain appellants’ thirteenth issue.

                                                 43
Consequently, the district court erred in awarding CITGO attorney’s fees. We do not reach and

express no opinion regarding appellants’ other challenges to the attorney’s fees award.


                                           CONCLUSION

                We reverse the portion of the district court’s judgment awarding CITGO attorney’s

fees on its promissory estoppel theory and render judgment that CITGO take nothing on that theory.

As for CITGO’s negligence claim, we hold that the evidence is legally insufficient to support the

jury’s award of $1,159,194.75 in past damages, but there is sufficient evidence that CITGO incurred

$871,413.99 in such damages—a difference of $287,780.76. Accordingly, we suggest a remittitur

in the amount of $287,780.76. See Tex. R. App. P. 46.3. If CITGO files a remittitur in this amount

with the district clerk within thirty days of the date of this opinion and so notifies the Court, we will,

having overruled appellants’ other issues challenging CITGO’s negligence recovery, reform the

district court’s judgment to award $871,413.99 in past negligence damages and, as modified, affirm.

If the sum is not remitted, the judgment will be reversed, and the cause will be remanded to the

district court for a new trial on CITGO’s negligence claims.




                                                ____________________________________________

                                                Bob Pemberton, Justice

Before Justices Pemberton, Waldrop and Smith;
 (Justice B.A. Smith Not Participating)

Reversed and Rendered in part, and Conditionally Affirmed in part

Filed: October 3, 2008

                                                   44
