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

Opinion

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

No. 12-11-00303-CV

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

ENBRIDGE PIPELINES (EAST TEXAS) L.P. Appellant

v.

GILBERT WHEELER, INC. Appellee _________________________________________________________________

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

APPELLANT’S SUPPLEMENTAL BRIEF ON REMAND

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

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

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

Apellee: Gilbert Wheeler, Inc.

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

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

ii TABLE OF CONTENTS

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

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

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

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

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

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

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

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

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

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

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

iii INDEX OF AUTHORITIES

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

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

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

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

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

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

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

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

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

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

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

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

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

STATUTES AND RULES:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

has been damaged – under the new law.

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

The Supreme Court unequivocally agreed that the claim sounded in breach

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

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

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

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

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

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

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

However, although the Supreme Court determined that breach of contract

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

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

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

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

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

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

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

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

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

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

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

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

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

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

calculation of such damages.” Id.

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

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

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

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

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

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

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

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

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

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

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

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

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

Smelser.

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

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

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

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

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

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

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

briefed in the Supplemental Issues on Remand herein below).

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

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

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

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

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

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

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

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

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

This issue was considered and resolved by the Supreme Court.

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

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

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

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

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

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

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

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

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

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

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

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

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

basis of a modified judgment by this Court.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

II. APPARENT CHANGES IN THE LAW RESULTING FROM

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

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

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

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

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

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

Court in this case.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

92 (Tex. 1956)).

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

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

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

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

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

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

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

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

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

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

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

trial would be appropriate.

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

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

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

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

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

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

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

693-94 (Tex. 2012).

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

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

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

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

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

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

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

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

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

the jury.

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

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

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

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

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

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

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

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

Court’s ruling.

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

12 A. Standard of Review

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

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

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

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

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

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

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

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

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

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

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

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

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

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

802, 827 (Tex.2005).

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

necessary to uphold Wheeler, Inc.’s verdict.

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

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

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

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

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

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

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

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

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

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

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

506 (Tex. 1984).

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

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

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

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

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

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

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

Morrison) or wind barriers.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

100-180).

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

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

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

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

as to the utilitarian value attributable to those trees.

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

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

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

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

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

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

Lynwood Smelser did testify generally regarding the purposes served by

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

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

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

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

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

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

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

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

Q: what a forest is really worth.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A: No. It’s intermittent.

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

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

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

A: No.

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

Q: It’s no longer a forest?

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

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

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

A: That’s right.

20 Q: It’s not anybody’s lawn. A: No

Q: No. It’s --it’s the woods.

A: It’s a forest.

Q: Well, it’s not a lawn – A: No.

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

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

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

A: Yes.

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

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

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

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

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

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

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

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

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

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

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

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

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

Q: Was it used for recreation?

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

Q: Hunting?

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

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

A: Strictly for recreation.

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

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

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

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

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

A. Standard of Review

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

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

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

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

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

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

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

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

B. Argument and Case Authority

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

conceivably mentions any aesthetic value or utilitarian value was offered by

Lynwood Smelser. That testimony is unquestionably factually insufficient to

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

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

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

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

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

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

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

habitat by the presence of those trees.

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

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

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

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

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

Dr. Gary Kronrad testified as follows:

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

A: No, sir.

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

A: No, sir.

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

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

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

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

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

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

again preserve error for appeal.

IV. CONCLUSION AND PRAYER

The Supreme Court specifically acknowledged its longstanding obligation to

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

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

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

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

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

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

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

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

$288,000.

WHEREFORE, PREMISES CONSIDERED, Enbridge respectfully

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

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

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

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

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

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

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

43.2, 43.3, and 43.4.

Respectfully submitted,

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

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

CERTIFICATE OF COMPLIANCE

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

/s/ Julie P. Wright JULIE P. WRIGHT

27 CERTIFICATE OF SERVICE

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

Mr. Don Wheeler 101 Tenaha Street Center, Texas 75935

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

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

/s/ Julie P. Wright JULIE P. WRIGHT

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

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

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

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

Reversed and remanded.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

END OF DOCUMENT

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

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

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

When reviewing a jury verdict to determine the

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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trial.

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

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

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

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

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

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

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

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

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

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

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

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

END OF DOCUMENT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tex.Civ.App. 1956 Lucas v. Morrison

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West Headnotes

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

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

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

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[9] Evidence 157 555.2 Products Liability 313A 147

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3) impose monetary penalties as sanctions.

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

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

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

West Headnotes [4] Appeal and Error 30 989

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The motion for rehearing is overruled.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

END OF DOCUMENT

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

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

West Headnotes Trial 388 238

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

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

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

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

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

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

Trial 388 350.1 [14] Appeal and Error 30 1062.1

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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TEX.R.APP. P. 59.1.

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

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