Opinion
NO. 02-14-00110-CV
01-28-2016
HULCHER SERVICES, INC. APPELLANT v. EMMERT INDUSTRIAL CORP. APPELLEE
FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 236-228956-08 CONCURRING AND DISSENTING MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
The majority utilizes a nonexistent defensive-theory instruction to erroneously conclude that, as a matter of law, Emmert's and Oncor's own post-derailment business dealings were the cause of Emmert's lost profits. Because the jury charge foreclosed this, and because there is evidence that Hulcher's misrepresentations were a producing cause of Emmert's lost profits, which were not too remote to recover, I dissent from the portion of the majority's opinion addressing lost profits and attorneys' fees and concur in the remainder of the opinion.
The jury charge's question number two stated in relevant part as follows:
Did Hulcher engage in a false, misleading, or deceptive act or practice that Emmert relied on to its detriment and that was a producing cause of damages to Emmert:The question accurately stated the law. A producing cause is a substantial factor that brings about the injury and without which the injury would not have occurred. Prudential Ins. Co. of Am. v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 161 (Tex. 1995); see Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 46 (Tex. 2007). Unlike proximate cause, producing cause does not require foreseeability. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 481 (Tex. 1995). Further, as the charge expressly stated—and the use of the word "a" instead of the word "the" effectively implied—there may be more than one producing cause of an injury. Main Place Custom Homes, Inc. v. Honaker, 192 S.W.3d 604, 616 (Tex. App.—Fort Worth 2006, pet. denied). "Thus, the plaintiff need only show the defendant's actions were a producing cause of her injuries, not that they were the cause." Mitchell v. Brandon Mill Assocs. Ltd., No. 05-96-00688-CV, 1998 WL 548822, at *6 (Tex. App.—Dallas Aug. 31, 1998, pet. denied) (emphasis in original).
"Producing cause" means a cause that was a substantial factor in bringing about the damages, if any, and without which the damages would not have occurred. There may be more than one producing cause. [Emphasis added.]
Additionally, the charge instructed the jury to "[b]ase your answers only on . . . the law that is in these instructions and questions." The charge did not contain any kind of new and independent cause inferential rebuttal instruction. See Dew v. Crown Derrick Erectors, Inc., 208 S.W.3d 448, 450-51 (Tex. 2006); Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. Kwiatkowski, 915 S.W.2d 662, 665 (Tex. App.—Houston [14th Dist.] 1996, no writ.). An inferential rebuttal defense operates to rebut an essential element of the plaintiff's case by proof of other facts. Dillard v. Tex. Elec. Coop., 157 S.W.3d 429, 430 (Tex. 2005). A new and independent cause "destroys the causal connection, if any, between the act or omission inquired about and the occurrence in question and thereby becomes the immediate cause of such occurrence." State Bar of Tex., Tex. Pattern Jury Charges—General Negligence, PJC 3.1 (2014) (emphasis added). Unless the record demonstrates otherwise, we must presume that the jury followed the instructions given in the jury charge. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 771 (Tex. 2003).
Of course, all of this is set against the backdrop that the DTPA must be liberally construed to promote its underlying purpose—protecting consumers. See Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 355 (Tex. 1987) (op. on reh'g); see also Tex. Bus. & Com. Code Ann. § 17.50(a) (West 2011) ("A consumer may maintain an action where any of the following constitute a producing cause of economic damages . . . .") (emphasis added).
Hulcher argues that it "had nothing to do with" "Emmert's refusal to pay Oncor for its share of responsibility and Oncor's decision to put litigation pressure on Emmert." These "intervening causes," as Hulcher describes them, "destroy[ed] any claim of causation." After reciting some facts, including a case that addresses new and independent cause, the majority sustains Hulcher's contention, concluding that "Oncor's and Emmert's acts that were responsive toward each other, not Hulcher's acts leading to the toppling of the transformer, comprised the driving force in the impairment of Emmert's business relationship with Oncor." Indeed, according to the majority, "the evidence establishes that Oncor's and Emmert's decisions independently altered the natural course of their business relationship."
The majority purports to conclude that Emmert's lost profits are too remote, but what it has actually done is (i) engraft a new and independent cause instruction upon question number two and then (ii) utilize that instruction to conclude that Emmert's and Oncor's own post-derailment business dealings were the cause of Emmert's lost profits as a matter of law. I disagree with this analysis not only because a new and independent cause instruction was not included in the charge, but also because—even if the jury could have considered intervening-cause evidence in the absence of an instruction—there is evidence that the jury could have reasonably relied upon to conclude that Hulcher's misrepresentations—described by the majority—were a producing cause of Emmert's lost profits.
Anything more than a scintilla of evidence is legally sufficient to support the finding. Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996); Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996). More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about the existence of a vital fact. Rocor Int'l, Inc. v. Nat'l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex. 2002).
The relevant evidence showed as follows:
• Oncor's relationship with Emmert, or one of the entities that Emmert purchased, goes back years. In the mid-to-late 1980s, Gary Weir became the contact person between Oncor and National Rigging, the company that he was working for then. Weir later moved to Mashburn, a heavy-hauling business, and then to Emmert, which purchased Lone Star, another hauling business, around 2001. Weir testified that Oncor accounted for approximately 40% of Mashburn's business and that from the time that Emmert bought Lone Star, Emmert received approximately 90% of Oncor's heavy-haul jobs. According to Bryan "Bubba" Flynn, an Oncor employee, Oncor used Emmert for jobs like the one in this case 95% of the time;
• Up until 2007, Emmert and Oncor had an employment agreement that they would renew every year. Certain jobs were billed using an hourly rate, which did not require any bidding, and on other larger jobs, Emmert would "quote the job," meaning that both sides had a number of months to plan and work out the numbers;
• Oncor hired Emmert to move a 480,000 pound transformer from one place to another;
• the railcar on which the transformer sat rolled away and derailed after a Maxim Crane employee released, but was unable to re-engage, the railcar's brake;
• Hulcher showed up and completely botched the rerail job, damaging beyond repair the previously undamaged transformer;
• Oncor later sued Emmert and Hulcher for damages related to the loss of the transformer;
• While the litigation was pending, Oncor discontinued using Emmert for future jobs in an effort to pressure Emmert to resolve the dispute. Mike Hamilton, Oncor's manager of transmission equipment support, testified during his deposition in part as follows:
[Lawyer:] But for . . . your recommendation . . . to executive management that Oncor not use Emmert, Emmert would have been a viable contract but for the lawsuit or pending litigation?
[Hamilton:] For the damage and loss of the unit.
[Lawyer:] Right. Had that not occurred
[Hamilton:] Had that not occurred, the loss of the unit, Emmert would have still been on the list.
Hamilton explained that it was his intent that Oncor would resume using Emmert after it had made "restitution";
• Oncor used Emmert's services after the litigation was resolved.
The majority observes, several times, that Oncor continued to use Emmert's services immediately after the incident—presumably to reinforce its conclusion that the litigation between Oncor and Emmert broke the causal nexus between Emmert's damages and Hulcher's actions—but the jury could have inferred from Hamilton's deposition testimony that Oncor had awarded those jobs to Emmert before the June 2007 incident. --------
As Emmert touches upon, there is nothing uncommon about business entities pursuing litigation after sustaining a loss and employing unique tactics during that litigation to accelerate its ultimate conclusion, as Oncor did here. Although such conduct is particularly amenable to a lost-profits analysis, a court should be careful not to afford evidence of that character more weight than it actually deserves.
In this case, Emmert's and Oncor's post-derailment business dealings certainly could be a producing cause of Emmert's lost profits (a question the jury was not asked), but as the evidence detailed above demonstrates—that Oncor used Emmert for years, stopped using Emmert after the incident caused by Hulcher, and then began using Emmert again—those matters could not have been, as a matter of law, the cause of Emmert's lost profits. Rather, viewing all of the evidence in the light most favorable to Emmert, and any reasonable inferences that could have been drawn therefrom, I would hold that the jury could have found that Hulcher's misrepresentations, and resulting actions in damaging the transformer, were a substantial factor in bringing about Emmert's lost profits, without which those damages would not have occurred. See Prudential Ins. Co. of Am., Ltd., 896 S.W.2d at 161. Moreover, insofar as the majority reasons that Emmert's lost profits are too remote, that conclusion is legally incorrect because Hulcher's actions, which damaged the transformer beyond repair, thus triggering the legal dispute between Oncor, Emmert, and Hulcher, undoubtedly amounted to more than "one of the countless ubiquitous and insignificant causes that in some remote sense may have contributed to" Emmert's lost profits. Transcon. Ins. Co. v. Crump, 330 S.W.3d 211, 224 (Tex. 2010). Because I would not disturb the jury's lost profits award, I would also decline to remand the attorneys' fees award. See Village Place, Ltd. v. VP Shopping, LLC, 404 S.W.3d 115, 138 (Tex. App.—Houston [1st Dist.] 2013, no pet.) ("A meaningful reduction in the amount of damages on appeal may support remand for a new trial on attorney's fees."). Because the majority concludes otherwise, I respectfully dissent from the portion of the majority's opinion addressing lost profits and attorneys' fees and concur in the remainder of the opinion.
/s/ Bill Meier
BILL MEIER
JUSTICE DELIVERED: January 28, 2016