In Horton v. Kansas City Southern Ry. Co., the Texas Supreme Court walked back a line of authority about the Casteel harmful-error presumption for certain types of charge error, stating that the presumption does not apply to legal-sufficiency issues that arise from proof failure rather than legal infirmity:

For this reason, and in an effort to clarify the law and simplify the process, we hold that reviewing courts should not presume harm when a broad-form submission permits a jury to make a finding based on a theory or allegation that is invalid only because it lacks evidentiary support. Because the broad-form negligence question submitted in this case was erroneous only for that reason, we conclude that Casteel’s presumed-harm rule does not apply. 

Fair enough. Now what? The court explained:

After determining whether [the Casteel presumption] applies, and assuming the parties point to the record to support their conflicting positions, reviewing courts should focus on the ultimate question of whether “a review of the entire record provides [a] clear indication that the contested charge issues probably caused the rendition of an improper judgment.”  Focusing on that ultimate issue, reviewing courts should explain in their opinions why the record as a whole does or does not establish harm in each particular case.

No. 21-0769 (June 28, 2024) (citations omitted). Time will tell whether this clarification enhances the efficiencies of broad-form submission, or produces Baroque case law about various indicia of harm, since a jury’s actual thought process is privileged.

After a jury trial, Mumford was declared to be a sexually violent predator and then civilly committed. Dr. Turner, a psychologist, interviewed him and prepared a written report. The trial court struck, for procedural reasons, another expert who the State planned to call at trial, and then allowed the State to offer Dr. Turner’s written report in evidence. The Fifth Court reversed, finding that the report was prepared in anticipation of litigation (the commitment proceedings) and thus was not admissible as a business record. As to harm, it said: “Dr. Turner’s report was the only evidence that appellant ‘suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence.’ Without evidence to support that finding, the jury could not have found
appellant was a sexually violent predator.” In re Mumford, No. 05-19-00186-CV (March 31, 2020) (mem. op.)

Alpha Omega alleged that a law firm breached its responsibilities as an escrow agent. In ts findings of fact and conclusions of law, the trial court said: “11. Alpha Omega, Inc. did not prove by a preponderance of the credible evidence that a fiduciary relationship existed between it and the Defendants.” The Fifth Court disagreed, and then found harm because the trial court “did not evaluate the remaining elements of fiduciary breach under the proper legal standards” and “there was some evidence of the remaining elements of fiduciary breach, such that the trial court could have reached the opposite result had it not erred in finding 11.” Accordingly, it reversed and remanded. Alpha Omega CHL, Inc. v. Min, No. 05-15-00124-CV (June 16, 2016) (mem. op.)

A pair of attorneys sued each other for breach of contract and breach of fiduciary duty, with the plaintiff also asserting a claim for violation of the Texas Theft Liability Act. The jury found both attorneys at fault and awarded no damages. The defendant moved for an award of attorney fees as the prevailing party on the Theft Liability Act claim, but the trial court denied the motion. The Court of Appeals affirmed, holding that the defendant’s failure to plead a claim for recovery of attorney fees under the Act precluded him from recovering his costs of defense. Pleading for recovery of fees under the breach of contract counterclaim and in special exceptions was not sufficient to invoke a claim for recovery under the Theft Liability Act, even though that statute provides for a mandatory award of attorney fees to the prevailing party.

The Court also affirmed on the plaintiff’s cross-appeal, which challenged the trial court’s disqualification of him from personally conducting the examination of his computer forensics expert. Under Disciplinary Rule 3.08, an attorney is generally prohibited from appearing as both an advocate and a witness. However, the defendant failed to meet his burden of showing he would have been prejudiced by having his opposing party conduct the examination, so the trial court did abuse its discretion by ordering the disqualification. Nevertheless, the error was deemed harmless because the plaintiff failed to advise the trial court that his attorney was not prepared to question the witness and he did not point to any specific testimony that the attorney had failed to elicit from the expert. The Court also affirmed the trial court’s rulings on a pair of evidentiary issues and on special exceptions to the Theft Liability Act claim.

Shaw v. Lemon, No. 05-12-00903-CV

The court affirmed a judgment for the plaintiff in a car wreck case over complaints of improper jury arguments. Nguyen crashed her car into Myers car, and Myers sued. Nguyen did not contest liability at trial, but disputed the amount Myers’s claimed damages. The parties agreed in limine that Myers be precluded from mentioning Nguyen’s liability insurance. At trial, one of Myers’s chiropractors testified that Nguyen’s expert, Dr. Timberlake, was “hired by insurance companies to make judgment on patients he’s never seen before . . . .” Nguyen objected to this testimony as an interjection of insurance, which was overruled, and moved for a mistrial, which was denied. Later in closing, Myers’s counsel stated that Timberlake was “paid by them” and was “their hired gun.” The jury awarded Myers his requested damages and Nguyen filed a motion for new trial based on the court’s denial of mistrial, which was not granted.

On appeal, the court held that any error caused by the interjection of insurance did not rise to the level of “harmful error,” and the testimony was not an “incurable statement,” because the jury’s verdict could not have turned on the one isolated mention of insurance. Furthermore, Nguyen failed to preserve her arguments that Myers’s counsel’s statements were incurable jury arguments because she failed to object to them, request a limiting instruction, or assert that argument in her motion for new trial.

Nguyen v. Myers, No. 05-11-01510-CV

Memorandum opinions don’t usually run as long as 12 pages, but that’s how much space it took to sort out a dispute between a property owner and the contractor he hired to do some paving work on the property.  The contractor seemingly abandoned the unfinished project — which was supposed to have taken 7-10 days — after two months, and left behind his rented bulldozer.  The property owner eventually terminated the parties’ contract, but refused to hand over the bulldozer.  The bulldozer subsequently disappeared from the property, with the landowner claiming it had been stolen (a claim the trial court deemed “not credible”).

The trial court found the property owner liable for conversion of the bulldozer, and the court of appeals affirmed.  The court held that the trial testimony adequately supported the findings that (1) the lessor was the proper owner of the vehicle, (2) the landowner had exercised dominion and control over it, (3) the property owner had not acted in good faith in refusing to return the bulldozer, and (4) the alleged superseding cause of the bulldozer’s mysterious disappearance was irrelevant because the alleged theft occurred after the landowner had refused to return it to the rightful owner.  The court of appeals also held that even though the trial court erred by allowing two undisclosed witnesses to testify at trial, that error was harmless because their testimony was cumulative of what other witnesses had also testified.  Finally, the court reversed the trial court’s refusal to grant judgment in favor of the property owner on his breach of contract claim, holding that the evidence supported the breach of contract claim as a matter of law.  Accordingly, the court of appeals remanded the case to the trial court for a determination of the landowner’s damages and the possible recovery of attorney fees.

Miller v. Carter., No. 05-11-00193-CV