Wise Elec. Coop., Inc. v. Am. Hat Co.

• Decision Date: 17 September 2015
• Docket Number: NO. 02–13–00439–CV,02–13–00439–CV
• Citation: 476 S.W.3d 671
• Court: Texas Court of Appeals
• Parties: Wise Electric Cooperative, Inc., Appellant/Appellee v. American Hat Company, Appellee/Appellant

476 S.W.3d 671

Wise Electric Cooperative, Inc., Appellant/Appellee

v.American Hat Company, Appellee/Appellant

NO. 02–13–00439–CV

Court of Appeals of Texas, Fort Worth.

DELIVERED: September 17, 2015

David Farris, John R. Lively, John R. Lively, Jr., Daniel Aguilar, Lively & Associates, LLP, Fort Worth, TX, for Cross–Appellants.

David Keltner, Kelly Hart & Hallman, LLP, Fort Worth, TX, Michael Choyke, Thomas C. Wright, Andrea G. Tindall, Wright & Close, LLP, Houston, TX, T.B. Nicholas, Jr., Downs & Stanford, P.C., Dallas, TX, for Cross–Appellees.

PANEL: GARDNER and WALKER, JJ.¹

OPINION

SUE WALKER, JUSTICE

I. INTRODUCTION

Appellee and Cross–Appellant American Hat Company (AHC) sued Appellant and Cross–Appellee Wise Electric Cooperative, Inc., for negligence following a catastrophic grass fire that consumed roughly 1,200 acres and was caused by an overhead service wire becoming disconnected at a Wise Electric utility pole. Thick smoke from the fire damaged AHC's inventory of 490,092 hats and "hat bodies"; much of this inventory was stored in twelve forty-foot sea containers parked outside AHC's western-hat manufacturing plant in Bowie, Texas. Following a five-day bench trial, the trial court issued sixty-four findings of fact and seventeen conclusions of law² and signed a judgment awarding AHC $13,385,969.37 in personal property damages and $5,100,379.00 for past lost-profits damages. The judgment also awarded Wise Electric a $49,188.31 credit and an offset of $2,578,067.00. AHC and Wise Electric both perfected appeals.³

Wise Electric raises seven issues on appeal; six issues challenge various aspects of the trial court's damage findings, and one issue challenges the trial court's finding that Wise Electric was negligent.⁴ AHC appeals the $2,578,067.00 offset. We will affirm the trial court's judgment on negligence and damages, and we will reverse the judgment's offset award and remand that claim to the trial court.

II. OVERVIEW OF FACTUAL BACKGROUND ⁵

The fire giving rise to this lawsuit originated at Wise Electric pole meter number 04610 located on Charles Anderson's property in Wise County. In 1998, Wise Electric had installed an overhead service line at the pole utilizing a Burndy Insulink connector. The electrically-charged overhead service line became disconnected from one end of the Insulink connector, and the disconnected line contacted the ground wire on the pole, which caused electrical arcing. The arcing melted the ends of the metal wires in the disconnected line, and molten metal fell to the underlying dry grass. It was a dry, windy day, and the grass ignited, resulting in the fire.⁶ In addition to approximately 900 to 1,200 acres of native grass, several structures, vehicles, and campers were consumed. Thirtythree fire trucks, an EMS vehicle, twenty other types of vehicles, and over one hundred fire-fighting personnel responded to assist in containing and extinguishing the fire.

The fire burned past the back of AHC's western-hat manufacturing plant, burning barrels of lacquer located behind the factory and generating heat sufficient to cause bricks to pop from the building. Heavy smoke from the fire engulfed the plant, which housed machinery, some hat inventory, and some completed hats awaiting shipping. The smoke was so dense around the plant that visibility in that area was limited to ten feet and surrounding roads were blocked off. The smoke, soot, and ash penetrated AHC's plant, entering through the ventilation system and from under the doors and sullying the plant's walls, floors, and machinery. The smoke also penetrated the twelve forty-foot sea containers that were filled with additional hat inventory.⁷ A strong smoke stench saturated AHC's entire inventory of 490,092 western hats that were in various stages of completion and were stored either in the plant or in the sea containers. Photos were introduced into evidence showing the devastation wrought by the fire at and around AHC's plant. An outside company was hired to clean the plant, and AHC had to stop its manufacturing processes until the plant and equipment had been cleaned and until it had obtained new hat inventory.

III. ATTACK ON PRIOR JUDGMENT

In its seventh issue, Wise Electric requests that we reinstate the jury's damages findings from the first trial. Wise Electric asserts that this court erred in the reverse-and-remand judgment we issued after the first appeal in this case.⁸ But Wise Electric petitioned the Texas Supreme Court to review that judgment, the Texas Supreme Court denied Wise Electric's petition, our mandate issued, and the case was remanded to the trial court and retried. Thus, our plenary jurisdiction over our judgment in the first appeal has expired. See Tex. R. App. 18.1, 19.1; Tex. Gov't Code Ann. § 22.225 (West Supp.2014). We lack jurisdiction to reinstate the jury's damage findings from the first trial. See Tex. R. App. P. 19.3 (listing limited actions appellate court may take after expiration of plenary power over judgment), 43.2 (listing types of judgment an appellate court can render); see also Browning v. Prostok, 165 S.W.3d 336, 345–47 (Tex.2005) (recognizing that only void judgments are subject to collateral attack and that a judgment is void only when court had "no jurisdiction of the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter the particular judgment, or no capacity to act"). We overrule Wise Electric's seventh issue.

IV. WISE ELECTRIC'S EVIDENTIARY–SUFFICIENCY CHALLENGES

Wise Electric's first, second, third, and fifth issues challenge the legal and factual sufficiency of the evidence to support the trial court's findings of fact concerning Wise Electric's negligence and AHC's damages.

A. Standards of Review

A trial court's findings of fact have the same force and dignity as a jury's answers to jury questions and are reviewable for legal and factual sufficiency of the evidence to support them by the same standards. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994) ; Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.1991) ; see also MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 663 n. 3 (Tex.2009). We defer to unchallenged findings of fact that are supported by some evidence. Tenaska Energy, Inc. v. Ponderosa Pine Energy, LLC, 437 S.W.3d 518, 523 (Tex.2014). We review de novo the conclusions of law drawn by the trial court from the facts to determine their correctness. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002). Because a trial court's conclusions of law are not binding on us, we will not reverse a trial court's judgment based on an incorrect conclusion of law when the controlling findings of fact support the judgment on a correct legal theory. See, e.g., Karns v. Jalapeno Tree Holdings, L.L.C., 459 S.W.3d 683, 690 (Tex.App.–El Paso 2015, pet. denied) (citing Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex.1998) ).

We may sustain a legal-sufficiency challenge only when (1)the record discloses a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998), cert. denied, 526 U.S. 1040, 119 S.Ct. 1336, 143 L.Ed.2d 500 (1999) ; Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L.Rev. 361, 362–63 (1960). In determining whether there is legally-sufficient evidence to support the finding under review, we must consider evidence favorable to the finding if a reasonable factfinder could and disregard evidence contrary to the finding unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex.2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex.2005).

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). When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003), cert. denied, 541 U.S. 1030, 124 S.Ct. 2097, 158 L.Ed.2d 711 (2004) (citing Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983) ). 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).

When reviewing an assertion that the evidence is factually insufficient to support a finding, we set aside the finding only if, after considering and weighing all of the evidence in the record pertinent to that finding, we determine that the credible evidence supporting the finding is so weak, or so contrary to the overwhelming weight of all the evidence, that the answer should be set aside and a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986) (op. on reh'g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) ; Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

B. Negligence

In a portion of its fifth issue, Wise Electric argues that the evidence is legally and factually insufficient to prove that it was negligent and that its negligence was the proximate cause of the fire. Wise Electric's fifth issue indicates that it challenges findings of fact 12, 13, 15(2), 19, 20 through 25, and 39 and conclusions of law 1,2,3, 5, 7, and 8.⁹

1. The Elements of Negligence

To sustain a negligence action, the plaintiff must produce evidence of a legal duty owed by the defendant to the plaintiff, a breach of...