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    HCRA OF TEXAS, INC., d/b/a Heartland Health Care Center-Bedford, Appellant v. Margie Fay JOHNSTON, Tommy Lloyd Johnston, Gary Wayne Johnston, and Douglas Lee Johnston, Individually and on Behalf of the Estate of Lloyd Thomas Johnston, Deceased, Appellees.
    No. 2-03-321-CV.
    Court of Appeals of Texas, Fort Worth.
    Nov. 3, 2005.

      Fulbright & Jaworski L.L.P., and W. Wendell Hall, and Rosemarie Kanusky, San Antonio, for Appellant.
    Noteboom — The Law Firm, and Charles M. Noteboom, and J. Mark Sudderth, Hurst, for Appellees.
    J. Mark Sudderth, for Douglas Lee.
    PANEL A: CAYCE, C.J.; HOLMAN and WALKER, JJ.
   OPINION

SUE WALKER, Justice.

I. INTRODUCTION

This is a nursing home liability case. The trial court rendered judgment on the jury’s verdict for Appellees Margie Fay Johnston, Tommy Lloyd Johnston, Gary Wayne Johnston, and Douglas Lee Johnston, individually and on behalf of the estate of Lloyd Thomas Johnston, deceased (collectively Appellees or Johnstons) and against Appellant HCRA of Texas, Inc. The primary issues we address involve the sufficiency of the evidence to support the jury’s damage awards and malice finding. Because we hold that legally insufficient evidence exists to support the jury’s malice finding, we will reverse the judgment’s exemplary damages award and render judgment that Appellees take nothing on their exemplary damages claim. Because the evidence is legally and factually sufficient to support the jury’s damage findings, we will affirm the remainder of the trial court’s judgment.

II. Factual Background

Lloyd Thomas Johnston, a seventy-one-year-old man, underwent bypass surgery and, as a result of complications from that surgery, was hospitalized for eighty-four days. During this time a feeding tube, a J-tube, assisted in feeding Lloyd. Lloyd was steadily recovering but needed additional rehabilitation. On May 21,1999, the hospital discharged Lloyd to HCRA for rehabilitation.

Lloyd had colonized MSRA when he was admitted to HCRA. Lloyd initially made progress at HCRA. According to Lloyd’s son, HCRA employees worked well with Lloyd and provided successful physical therapy rehabilitation to Lloyd; the family saw an improvement in Lloyd’s mobility and strength about every two days. But around June 10, 1999, after approximately three weeks at HCRA, Lloyd’s health took a turn for the worse. On June 15th, after twenty-five days at HCRA, Lloyd’s condition had severely deteriorated; Dr. Aziz Klavon ordered Lloyd transferred immediately by ambulance to the hospital emergency room. Lloyd died less than twenty-four hours later. Lloyd’s death certificate indicates that he died of multi-system organ failure secondary to sepsis, septic shock. Lloyd’s death certificate listed is-chemic colitis as a tertiary cause of death. Lloyd’s family and experts presented evidence that at HCRA Lloyd was not properly cleaned or repositioned — causing him to develop decubitus ulcers, he was not properly nourished, he was not given his medicines, his urine output and body temperature were not measured, his room was not cleaned, and HCRA kept inadequate records and fabricated some records.

Appellees explain that their theory of the case at trial was that HCRA injured Lloyd “by, among other things, allowing the formation of decubitus ulcers, causing serious infection, and knowingly allowing [Lloyd] to lie unattended in his own excrement.” HCRA’s theory of the case was that Lloyd’s sepsis and death were the result of a new and independent cause— ischemic colitis.

III. Procedural Background

The negligence special question submitted to the jury was segregated into two subparts: did HCRA’s negligence proximately cause injuries to Lloyd and did the negligence of HCRA proximately cause the death of Lloyd. The trial court also gave the jury an instruction on new and independent cause. The jury determined that HCRA’s negligence did proximately cause injuries to Lloyd and determined that $17,805 for medical expenses and $75,000 for physical pain and mental anguish would have fairly and reasonably compensated him for those injuries. The jury also found that HCRA’s alleged negligence did not proximately cause Lloyd’s death and, consequently, the jury did not answer any of the wrongful death damages questions.

The jury further found that HCRA’s director of nursing, Margie Burns, was employed by HCRA in a managerial capacity and was acting in the scope of that capacity when she acted with malice, causing harm to Lloyd. The jury found that $1,000,000 in punitive damages should be assessed against HCRA. The trial court declined to apply the statutory punitive damages cap, concluding that Lloyd’s estate’s claims fell within the injury-to-the-elderly exception to the cap. The trial court overruled all post-verdict motions and rendered judgment on the jury’s verdict.

IV. Standing

In its first issue, HCRA asserts that Appellees did not establish standing to bring a survival action on behalf of Lloyd’s estate. Since. HCRA filed its appellate brief in this case, the Texas Supreme Court decided Austin Nursing Center, Inc. v. Lovato, 171 S.W.Sd 845, 48 Tex. Sup.Ct. J. 624, 624-80, 2005 WL 1124764, at *4 (Tex. May 13, 2005) and Lorentz v. Dunn, 171 S.W.3d 854, 856, 48 Tex. Sup. Ct. J. 630, 630-32 (Tex. 2005). In both Lovato and Lorentz the supreme court recognized that, in a survival action, the decedent’s estate has a justiciable interest in the controversy sufficient to confer standing. Lovato, 171 S.W.3d at 849-50; Lorentz, 171 S.W.3d at 856. Because the pleadings in this case alleged that HCRA’s negligent conduct injured Lloyd, his estate had standing to pursue the present claim. See Lovato, 171 S.W.3d at 49-50; Lorentz, at 856.

HCRA also claims that Appellees did not prove that they were Lloyd’s heirs and that no administration of his estate was pending or necessary. This contention does not, however, present an issue of standing. This issue is “more appropriately characterized as one of capacity.” Lovato, 171 S.W.3d at 848-49. Unlike standing, which may be raised for the first time on appeal, a challenge to a party’s capacity must be raised by a verified pleading in the trial court. Id.; Tex.R. Civ. P. 93(1)-(2). Because HCRA did not challenge Ap-pellees’ capacity to sue for survival benefits in the trial court, its complaint that Appellees failed to prove their legal authority to bring a survival action is waived. See generally Tex.R.App. P. 33.1 (discussing prerequisites for preserving a complaint for appellate review). Accordingly, we overrule HCRA’s first issue.

V. Interest

HCRA complains in its eighth and ninth issues that the judgment contains an incorrect starting date for, and rate of, prejudgment interest as well as an incorrect postjudgment interest rate. The trial court signed the judgment in this case on August 14, 2003. The judgment awards $37,122 in prejudgment interest on the survival damages found by the jury and awards postjudgment interest at the rate of ten percent per annum, compounded annually 'on the total judgment.

We first address HCRA’s complaint concerning the date on which prejudgment interest began to run. HCRA argues that the judgment appears to calculate prejudgment interest from June 15, 1999, the date Lloyd was transported to the hospital emergency room, but “[tjhere is no way to determine from the face of the judgment how this award was calculated.” HCRA, as the appellant, bears the burden of establishing error occurred in the trial court and that the error probably caused rendition of an improper judgment. See Tex. R.App. P. 44.1(a). Prejudgment interest is required in certain cases, including a personal injury case. See Tex. Fin.Code Ann. § 304.102 (Vernon Supp.2004-05). Lloyd’s estate, through Lloyd’s heirs, brought a personal injury action and recovered personal injury damages, but HCRA does not propose or suggest any alternative date on which prejudgment interest should properly have begun to run. Nor does HCRA set forth any interest computations alleging or demonstrating that the judgment’s award is incorrect. HCRA points out that the judgment does not explain its computation of prejudgment interest nor indicate the date on which prejudgment interest began to run; we hold that HCRA’s mere assertion that the computation is incorrect does not establish trial court error. We overrule this portion of HCRA’s eighth issue.

The balance of HCRA’s eighth and ninth issues challenge the judgment’s ten percent postjudgment interest award. HCRA argues that House Bill 2415’s amendments to the finance code apply to this case so that the postjudgment interest rate should be five percent. HCRA did not raise a complaint about the judgment’s interest rate or argue the applicability of House Bill 2415 in any timely filed post-judgment motion. HCRA timely filed a motion for new trial, and in the alternative, a suggestion for remittitur and a motion for judgment notwithstanding the verdict. But neither of these documents challenged the interest rate utilized in the judgment or argued that the amendments to the finance code effectuated by House Bill 2415 were applicable. HCRA did raise the interest issue in a supplemental motion for new trial, but the supplemental motion was not timely filed — it was filed forty-seven days after the judgment was signed — so it is a nullity and preserves nothing for our review. See Tex.R. Civ. P. 329b(a), (b) (requiring motion for new trial and amended motion for new trial to be filed within thirty days of date of judgment); Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex.2003) (holding untimely filed amended motion for new trial is a nullity for purposes of preserving issues for appellate review); Pringle v. Moon, 158 S.W.3d 607, 612 n. 2 (Tex.App.-Fort Worth 2005, no pet.) (holding argument that House Bill 2415’s effective date applied instead of House Bill 4’s effective date was waived if not raised in trial court). Consequently, the post-judgment interest arguments set forth in the balance of HCRA’s eighth issue and in its ninth issue are not preserved for our review. We overrule those issues.

VI. Sufficiency of the Evidence

In its second, third, and fourth issues, respectively, HCRA challenges the legal and factual sufficiency of the evidence to support the jury’s finding that HCRA’s negligence proximately caused an injury to Lloyd, the jury’s economic and noneco-nomic damage awards, and the jury’s finding that the harm to Lloyd resulted from malice attributable to HCRA.

A. Standards of Review

1. Legal Sufficiency

In determining a “no evidence” issue we are to consider only the evidence and inferences that tend to support the finding of the disputed fact — unless a reasonable juror could not give credit to such evidence or inferences. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). We are to disregard all evidence and inferences to the contrary to the disputed fact — unless a reasonable juror could not disregard such evidence or inferences. Id. But we are not to weigh the evidence or make our own credibility determinations. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001); Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). Anything more than a scintilla of evidence is legally sufficient to support the finding. Cont’l Coffee, 937 S.W.2d at 450; 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. Roeor Int’l, Inc. v. Nat’l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex.2002).

2. Factual Sufficiency

An assertion that the evidence is “insufficient” to support a fact finding means that the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the answer should be set aside and a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). We are required to consider all of the evidence in the case in making this determination, not just the evidence that supports the finding. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.), cert. denied 525 U.S. 1017, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998).

3.Legal Sufficiency Challenge in Light of Clear and Convincing Evidence Burden of Proof

The Texas Supreme Court recently clarified the appellate standards of review to be applied to a legal sufficiency challenge in light of the clear and convincing burden of proof. Accord In re J.F.C., 96 S.W.3d 256, 264-68 (Tex.2002) (discussing legal sufficiency review in termination of parental rights appeal). A legal sufficiency review of a finding required to be based on clear and convincing evidence must take into consideration whether the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the matter required to be established by clear and convincing evidence. Id; see also Kroger Tex. Ltd. P’ship v. Suberu, 113 S.W.3d 588, 601 (Tex.App.-Dallas 2003, pet. granted) (applying standards of review enunciated in J.F.C. to legal sufficiency challenge to evidence of malice). We are to “look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true.” J.F.C., 96 S.W.3d at 266.

B. The Jury’s Finding that HCRA’s Negligence Proximately Caused Injuries to Lloyd

Dr. Klavon was the medical director at HCRA during Lloyd’s stay there. Dr. Klavon testified that Lloyd was admitted to HCRA after bypass surgery for two to three weeks of rehabilitation. Lloyd steadily improved during his first two to three weeks at HCRA; however, Lloyd then became sick, experiencing vomiting and diarrhea.

Margie Burns, the director of nursing at HCRA, testified that Lloyd was taking the medicine Lasix and that it was important to monitor the fluid input and output of a patient on Lasix because Lasix is a diuretic that can contribute to dehydration. Dr. Richard Thorner likewise testified that La-six may contribute to dehydration, especially in a patient with diarrhea. Dr. Gun-da Kirk and Dr. David Stump testified that because Lloyd had a feeding tube and a catheter, it should have been very simple for the HCRA nurses to measure his fluid input and output and to keep him hydrated and nourished. Nurse Burns testified that the standard of care required HCRA’s nurses and nurses’ aides to keep a patient nourished and hydrated and to chart a patient’s fluid input and output. She admitted Lloyd’s fluid input and output were not properly charted as required by the standard of care. Dr. Klavon testified that Lloyd was not well nourished when he left HCRA and was dehydrated.

Lloyd’s family testified that they visited Lloyd daily at HCRA and that they did not see the nurses move or reposition Lloyd. Lloyd’s youngest son testified that after Lloyd became sick and developed diarrhea, he would ring for the nurses, but they would not come; they left him laying in his feces. Toward the end of Lloyd’s stay at HCRA, Lloyd’s family observed two ulcers on Lloyd’s back, behind his hip bones. HCRA’s records concerning Lloyd do not document the existence of, or any care or treatment for, these ulcers. When Lloyd was transferred by ambulance on June 15, 1999 to the hospital emergency room, physicians documented two stage three decu-bitis ulcers on Lloyd’s back. The ulcers were necrotic and oozing blood. Dr. Kirk testified that decubitus ulcers are completely preventable if the patient is repositioned every two hours. The standard of care is to reposition a patient who cannot turn himself every two hours; if the HCRA nurses had repositioned Lloyd, Dr. Kirk would have expected him to not have any ulcers.

Thus, the evidence and inferences tending to support the jury’s finding that HCRA’s negligence proximately caused injuries to Lloyd — malnourishment, dehydration, and decubitus ulcers — that could have been given credit by reasonable jurors includes expert testimony that the standard of care requires that patients who are unable to reposition themselves be repositioned every two hours, that decubi-tus ulcers do not develop if the repositioning demanded by the standard of care occurs, that it should have been easy for HCRA to keep Lloyd adequately nourished and hydrated because he had a feeding tube, that the standard of care requires patients be adequately hydrated and nourished, and that Lloyd was not adequately nourished or hydrated when he left HCRA. Also, Lloyd’s family members observed decubitus ulcers on Lloyd’s lower back while Lloyd was at HCRA; hospital emergency room records document that Lloyd had two stage three decubitus ulcers on his back when he arrived at the emergency room on June 15,1999.

The contrary evidence and inferences— Nurse Burns’s denial that Lloyd’s ulcers were present when he left HCRA, her incredible testimony that it was possible the decubitus ulcers occurred during the ten-minute ride to the hospital emergency room although she had never seen such a phenomenon, and an unsigned note in Lloyd’s chart that a nurse asked him to roll over one night and he refused — could have been disregarded by a reasonable juror. We hold that the evidence is legally sufficient to support the jury’s finding that HCRA’s negligence proximately caused injuries to Lloyd. See City of Keller, 168 S.W.3d at 827; Bradford, 48 S.W.3d at 754. Moreover, considering all of the evidence, the evidence supporting the jury’s finding that HCRA’s negligence proximately caused injuries to Lloyd is not so weak nor is the evidence to the contrary, set forth above, so overwhelming that the jury’s answer should be set aside and a new trial ordered. See Garza, 395 S.W.2d at 823. We overrule HCRA’s second issue.

C. The Jury’s Economic and Noneco-nomic Damage Awards

The jury found that the reasonable expense of the necessary medical and hospital care Lloyd received before his death as a result of his injuries was $17,805. The jury further found that $75,000 would fairly and reasonably compensate Lloyd for the physical pain and mental anguish he experienced before his death as a result of his injuries. In its third issue, HCRA claims that legally and factually insufficient evidence exists to support either of these damage awards.

HCRA claims that the evidence is legally and factually insufficient to support the jury’s award of $17,805 in medical expenses because the jury did not segregate the damages caused by HCRA’s negligence from the medical costs that would have accrued without HCRA’s negligence — the medical expenses related to Lloyd’s ischemic colitis. The billing records from the hospital following Lloyd’s June 15, 1999 transfer were submitted pursuant to Texas Civil Practice and Remedies Code section 18.001. See Tex. Civ. Peac. & Rem.Code Ann. § 18.001 (Vernon 1997). The total amount of Lloyd’s hospital bill from June 15, 1999 until his death on June 16, 1999 was $17,190.85. The records establish that Lloyd stayed in the hospital ICU one night before he died; that he was treated for dehydration, malnutrition, and decubitus ulcers; and that blood work and other tests were performed. No evidence exists that this treatment and these tests were necessitated by ischemic colitis. In fact, Lloyd was not diagnosed with ischemic colitis until it was noted on his death certificate after an autopsy.

It is true that a plaintiff may not force a defendant to pay his medical expenses for treatment of a pre-existing condition not caused by the defendant’s negligence. See Texarkana Mem’l Hasp., Inc. v. Murdock, 946 S.W.2d 836, 840 (Tex.1997) (holding plaintiff may recover only for medical expenses from treatment made necessary defendant’s negligence where differentiation is possible between treatment made necessary by defendant and treatment for pre-existing conditions). Here, however, the jury found that the purported pre-existing injuries — that is, dehydration, malnutrition, and decubitus ulcers — were proximately caused by HCRA’s negligence. Accord Linan v. Rosales, 155 S.W.3d 298, 306 (Tex.App.-El Paso 2004, pet. denied) (recognizing defendant not responsible for costs associated with pre-existing cancer but only for increased costs necessitated by alleged negligent delay in diagnosis). We overrule the portion of HCRA’s third issue challenging the jury’s damage award for $17,805 in medical expenses.

Next, HCRA contends that legally and factually insufficient evidence exists to support the jury’s award of $75,000 to Lloyd’s estate for the physical pain and mental anguish he suffered prior to his death. Lloyd was conscious during his entire stay at HCRA. Mr. Hunter Mack Baldridge, the administrator at HCRA, testified that he has seen decubitus ulcers and that they are nasty and look painful. The emergency room personnel documented Lloyd’s two decubitus ulcers as stage three, neucrotic, and oozing blood. Lloyd’s family members testified that Lloyd complained that his back hurt him.

The process of awarding damages for amorphous, discretionary injuries such as mental anguish or pain and suffering is inherently difficult because the alleged injury is a subjective, unliquidated, nonpeeuniary loss. Dollison v. Hayes, 79 S.W.3d 246, 249 (Tex.App.-Texarkana 2002, no pet.). The presence or absence of pain, either physical or mental, is an inherently subjective question. Id. No objective measures exist for analyzing pain and suffering damages. See Hicks v. Ricardo, 834 S.W.2d 587, 591 (Tex.App.-Houston [1st Dist.] 1992, no writ). Once the existence of some pain and suffering has been established, however, there is no objective way to measure the adequacy of the amount awarded as compensation. Dawson v. Briggs, 107 S.W.3d 739, 751 (Tex. App.-Fort Worth 2003, no pet.).

A party may establish the existence of conscious pain and suffering by circumstantial evidence. Borth v. Charley’s Concrete Co., 139 S.W.3d 391, 395 (Tex.App.-Fort Worth 2004, pet. denied); Landreth v. Reed, 570 S.W.2d 486, 492 (Tex.Civ.App.-Texarkana 1978, no writ). Pain and suffering may be inferred or presumed as a consequence of severe injuries. Borth, 139 S.W.3d at 395; City of Austin v. Setter, 415 S.W.2d 489, 501 (Tex.Civ.App.-Austin 1967, writ refd n.r.e.). The duration of the pain and mental anguish is an important consideration. Sun-Bridge Healthcare Corp. v. Penny, 160 S.W.3d 230, 250 (Tex.App.-Texarkana 2005, no pet.). The jury is given a great deal of discretion in awarding an amount of damages it deems appropriate for pain and suffering. Texarkana Mem’l Hosp., 946 S.W.2d at 841; Dollison, 79 S.W.3d at 249. Despite this broad discretion, there must “be some evidence to justify the amount awarded,” as a jury “cannot simply pick a number and put it in the blank.” Saenz v. Fid. & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex.1996).

As long as sufficient probative evidence exists to support the jury’s verdict, neither the reviewing court nor the trial court is entitled to substitute its judgment for that of the jury. Larson v. Cactus Util. Co., 730 S.W.2d 640, 641 (Tex.1987); J. Wigglesworth Co. v. Peeples, 985 S.W.2d 659, 665 (Tex.App.-Fort Worth 1999, pet. denied). A verdict will be set aside on appeal only where the record clearly indicates that the award was based on passion, prejudice, or improper motive, or is so excessive as to shock the conscience. Transit Mgmt. Co. of Laredo v. Sanchez, 886 S.W.2d 828, 826 (Tex.App.-San Antonio 1994, no writ); Weingarten, Inc. v. Gauthier, 305 S.W.2d 181, 197 (Tex.Civ.App.-Beaumont 1957, no writ).

HCRA’s challenge to the jury’s physical pain and mental anguish award is limited to three sentences and simply claims that the record is devoid of any evidence that Lloyd suffered pain or anguish. Lloyd’s family saw the decubitus ulcers on Lloyd’s back, which medical records and expert testimony established were stage three, necrotic, and oozing blood. Lloyd, who was fully conscious, complained to his family that his back hurt, indicating he was experiencing physical pain. Further, Lloyd was malnourished, causing his body to break down muscle to meet its caloric needs. The jury could have reasonably inferred from this evidence that Lloyd experienced physical discomfort, pain, and suffering from the injuries that the jury found proximately caused by HCRA. See City of Keller, 168 S.W.3d at 827; Bradford, 48 S.W.3d at 754. We overrule the portion of HCRA’s third issue challenging the legal sufficiency of the evidence to support the jury’s damage award of $75,000 for physical pain and mental anguish.

We now turn to the factual sufficiency challenge. Even though each case must be judged on its own unique facts, it is proper to consider other approved awards in similar cases to determine if an award for pain and suffering is excessive. SunBridge Healthcare Corp., 160 S.W.3d at 250. In SunBridge, the court held that an award of one million dollars was not excessive to compensate the plaintiff for physical pain and mental anguish suffered from injuries sustained in falls. Id. In Cresthaven Nursing Residence v. Freeman, the court held that an award of one million dollars — remitted down from four million dollars — was not excessive to compensate the plaintiff for physical pain and mental anguish suffered from two broken legs sustained in a fall. 134 S.W.3d 214, 228-232 (Tex.App.-Amarillo 2003, no pet.). In Guzman v. Guajardo, the court held that an award of six hundred thousand dollars was not excessive to compensate a young boy who endured fifteen minutes of pain sustained in a car accident before dying. 761 S.W.2d 506, 512 (Tex.App.Corpus Christi 1988, writ denied). Having thoroughly reviewed the record and applying the appropriate standard of review, we conclude that the evidence is factually sufficient to support the jury’s damage award of $75,000 for Lloyd’s physical pain and mental anguish. We overrule HCRA’s third issue.

D. The Jury’s Finding that the Harm to Lloyd Resulted From Malice Attributable to HCRA

Spécial question number 7 of the court’s charge asked the jury whether it found by clear and convincing evidence that the harm to Lloyd resulted from malice attributable to HCRA. The charge then defined clear and convincing evidence and malice and instructed the jury that in order for malice to be attributable to HCRA it must find that Nurse Burns was employed by HCRA in a managerial capacity and was acting in the scope of that capacity. The charge explained that

“Malice” means an act or omission by [Nurse] Burns:
(a) which, when viewed objectively from the standpoint of [Nurse] Burns at the time of its occurrence, involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and
(b) of which [Nurse] Burns had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others.

The jury answered “yes” to special question number 7.

Experts testified that decubitus ulcers are preventable if the patient is repositioned every two hours and that the standard of care requires such repositioning if the patient is unable to reposition himself. Expert testimony established that the existence of a J-tube does not prevent a patient from rolling onto his stomach or from sleeping on his stomach. And although Lloyd’s mobility and strength initially improved at HCRA, at some point he became incapable of repositioning himself. Lloyd’s family members testified that in the last week of Lloyd’s stay at HCRA they noticed two ulcers on his lower back. Lloyd’s hospital records establish that upon admission from HCRA he had two stage three, necrotic, decubitus ulcers that were oozing blood. And HCRA’s records do not document the existence of, or any care for, these ulcers. Based on this evidence, Appellees argue that HCRA “either ignored [Lloyd’s] worsening injuries or falsely claimed to have examined him when it did not” and that “such evidence is sufficient to support the jury’s conclusion that [HCRA] acted with conscious indifference to the rights of [Lloyd] despite awareness of an extreme risk of serious harm.”

Generally, the definition of malice under civil practice and remedies code section 41.001(7)(B) consists of two components: one objective and one subjective. See Columbia Med. Ctr. of Las Colinas v. Bush ex rel. Bush, 122 S.W.3d 885, 854 (Tex.App.-Fort Worth 2003, pet. denied). Objectively, the defendant’s conduct must involve an extreme risk of harm, a significantly higher threshold than the objective reasonable person test for negligence. Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 22 (Tex.1994). To satisfy the objective malice prong, the defendant’s conduct must, viewed objectively from the actor’s standpoint, involve an extreme degree of risk. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex.2001). “Extreme risk” means not a remote possibility of injury or even a high probability of minor harm, but rather the likelihood of serious injury to the plaintiff. Id. Subjectively, the defendant must have actual awareness of the extreme risk created by the conduct. Id. Evidence of simple negligence is not enough to prove either the objective or subjective components of malice. See Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex.1998).

The evidence concerning HCRA’s breach of the standard of care by failing to reposition Lloyd or to notice or treat his decubitus ulcers after his health took a turn for the worse during his last seven to ten days at HCRA is not, standing alone, evidence of the type of acts or omissions that, viewed from the actor’s standpoint, pose “an extreme degree of risk, considering the probability and magnitude of the potential harm to others.” Compare Universal Servs. Co. v. Ung, 904 S.W.2d 638, 642 (Tex.1995) (holding failure to adequately protect road worker from specific hazards, including the pothole in the road, did not create “likelihood of serious injury” required to satisfy objective gross negligence prong) with Lee Lewis Constr., Inc., 70 S.W.3d at 786 (holding obvious risk of death from falling ten stories was extreme risk and satisfied objective gross negligence prong); Mobil Oil Corp., 968 S.W.2d at 922-23 (holding known probability of suffering leukemia from benzene exposure was extreme risk and satisfied objective gross negligence prong); Columbia Med. Ctr. of Las Colinas, 122 S.W.3d at 855 (holding known risk that administration of drug to person with decedent’s condition was contraindicated and could be lethal was extreme risk and satisfied objective malice prong); Sears, Roebuck & Co. v. Kunze, 996 S.W.2d 416, 428 (Tex.App.Beaumont 1999, pet. denied) (holding evidence of reported amputations and other severe injuries occurring when consumers used defendant’s radial saw that lacked lower blade guard constituted evidence of extreme risk and satisfied objective gross negligence prong). Here, the evidence presented does not demonstrate that, viewed objectively from the standpoint of Nurse Burns, the acts or omissions upon which Appellees premise their exemplary damages claim posed an “extreme degree of risk” to Lloyd. See Dillard Dep’t Stores, Inc. v. Silva, 148 S.W.3d 370, 374 (Tex.2004) (recognizing that conduct, although extreme and outrageous, did not expose plaintiff to extreme risk of substantial harm). Viewing all the evidence in the light most favorable to the jury’s malice finding, we hold that a reasonable trier of fact could not have formed a firm belief or conviction that from Nurse Burns’s standpoint the risk presented to Lloyd was an extreme risk of serious injury. See J.F.C., 96 S.W.3d at 266. Therefore, we sustain HCRA’s fourth issue.

Because we sustain HCRA’s fourth issue and hold that the evidence is legally insufficient to support the jury’s malice finding, we need not address HCRA’s fifth issue challenging the legal and factual sufficiency of the evidence to support the $1,000,000 exemplary damages award, HCRA’s sixth issue alleging that the trial court erred by refusing to apply the statutory exemplary damages cap, or HCRA’s seventh issue alleging that the $1,000,000 exemplary damages award is unconstitutional and grossly excessive. See Tex. R.App. P. 47.1.

VII. Conclusion

Having sustained HCRA’s fourth issue, we reverse the judgment’s award of exemplary damages and render judgment that Appellees take nothing on their exemplary damages claim. Having overruled HCRA’s other issues, we affirm the remainder of the trial court’s judgment.

      . MSRA is Methicillin Resistant Staphyloccus Aureus, a type of bacteria that can "colonize” or exist in a person without causing an infection; it is not uncommon in patients in hospitals or nursing homes.

      . A decedent's personal injury action survives death and may be prosecuted on his or her behalf. See Tex. Civ. Prac. & Rem.Code Ann. § 71.021(a) (Vernon 1997).

      . Likewise, neither HCRA’s postjudgment motions in the trial court nor its arguments at the hearings on these motions provide this information.

      . See Act of June 20, 2003, 78th Leg., R.S., ch. 676, § 2(a), 2003 Tex. Gen. Laws 2096, 2097 (effective date June 20, 2003) (amending Tex Fin.Code Ann. § 304.003(c) (Vernon Supp. 2004-05)).

      .During the regular 2003 legislative session, the legislature passed House Bills 4 and 2415, both of which contained nearly identical amendments to the finance code that effectively reduced the postjudgment interest rate from ten to five percent. But House Bill 4 had an effective date of September 1, 2003 while House Bill 2415 had an effective date of June 20, 2003. See id. and Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 6.04, 2003 Tex. Gen. Laws 862, 862 (effective date Sept. 1, 2003) (effectuating same amendment to Tex. Fin.Code Ann. § 304.003(c)).

      . Blood tests documented a decline in Lloyd’s nutritional status; he was "malnourished,” not getting enough calories so that his body was breaking down its own muscle to satisfy its caloric needs.

      . HCRA does not argue that the treatment Lloyd received was not necessary or that the hospital’s charges were not reasonable.

      . One of the nurses at the hospital told Doug Johnston that, ''we’ve got him [Lloyd] pumped full of fluids.”

      .HCRA's theory of the case, which the jury apparently believed because it refused to find that HCRA's negligence caused Lloyd’s death, was that Lloyd died from ischemic colitis, a cause of death independent from any negligence by HCRA.

      . Although HCRA's issue is framed as a legal and factual sufficiency issue, its brief makes no factual sufficiency challenge to the jury’s medical expenses award. We have addressed HCRA’s only briefed issue: That the medical expenses were required to be segregated but were not.

      . See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 13.02, sec. 41.001 (7)(B)(I), 2003 Tex. Gen. Laws 887, 887 (amended 2003) (current version at Tex. Civ. Prac. & Rem.Code Ann. § 41.001(7) (Vernon Supp.2004-05)).

      . We do not hold that the failure to recognize and treat decubitus ulcers may never constitute an extreme risk of serious injury. We simply hold that no evidence exists that the approximately ten-day failure to do so in this case constituted an extreme risk of serious injury.

      . Appellees asserted that the injury-to-an-elderly-individual exception to the cap applied here, but no jury question was submitted other than the malice question. See Act of April 20, 1995, 74th Leg. R.S., ch. 19, § 46, 1995 Tex. Gen. Laws 108, 113, amended by Act of June 11, 2003, 78th Leg., R.S., ch. 204, § 13.06, sec. 41.008(c)(7), 2003 Tex. Gen. Laws 847, 888-89 (amended to add "but not if the conduct occurred while providing health care as defined by Section 74.001”) (current version at Tex. Civ. Prac. <& Rem.Code Ann. § 41.008(c)(7) (Vernon Supp.2004-05)). We are doubtful that the jury’s malice finding alone triggers the injury-to-an-elderly-individual exception to the cap, especially because the charge did not define malice as "a specific intent by the defendant to cause substantial injury to the claimant.” See Signal Peak Enters. of Tex., Inc. v. Bettina Inv., Inc., 138 S.W.3d 915, 927 (Tex.App.-Dallas 2004, pet. stricken); see also Mission Res., Inc. v. Garza Energy Trust, 166 S.W.3d 301, 315-16 (Tex. App.-Corpus Christi 2005, pet. filed) (holding exemplary damage cap inapplicable where jury made specific finding beyond reasonable doubt that defendant had committed felony theft). However, in our disposition of the appeal, we do not reach this issue.


source: Caselaw Access Project

author: ANNE GARDNER, Justice.

license: Public Domain

text:
    Roderick Lamont BRADFORD, Appellant, v. The STATE of Texas, State.
    No. 2-03-277-CR.
    Court of Appeals of Texas, Fort Worth.
    Nov. 3, 2005.

      Wes Ball, Arlington, for appellant.
    Tim Curry, Criminal District Attorney, Charles M. Mallín, Chief, Appellate Division, Steven W. Conder, Betty Arvin, Robert Foran, Assistant District Attorneys for Tarrant County, Fort Worth Texas, Fort Worth, for appellee.
    PANEL F: LIVINGSTON, HOLMAN, and GARDNER, JJ.
   OPINION

ANNE GARDNER, Justice.

I. Introduction

Appellant Roderick Lamont Bradford appeals from his conviction for capital murder. In two points, Appellant argues that the trial court erred by failing to charge the jury on the lesser included offenses of aggravated robbery and robbery and by admitting evidence of gang activity. We affirm.

II. Factual and procedural background

Because Appellant does not challenge the sufficiency of the evidence, we will limit our review of the facts to those necessary to put Appellant’s two points in context.

A jury convicted Appellant of the March 14, 2002 shooting death of Tadese Gobena while robbing the convenience store Gobe-na owned and operated on Tierney Road in Fort Worth. Curtis Lewis testified that on the day after the killing, Appellant told Lewis that he and Siquan “Ta-Dow” Tem-pleton had robbed a store on Tierney Road. Appellant told Lewis that he had shot the store owner in the leg and that Ta-Dow then took the gun and shot the man two more, times as he begged for his life.

Police arrested Appellant a few days after the shooting in connection with an unrelated incident. When questioned about Gobena’s murder, Appellant gave police three written statements. In his first statement, Appellant denied any direct knowledge of the crime and even claimed that he did not know which convenience store had been robbed. In his second statement, Appellant stated that he knew Ta-Dow and others were planning to rob a store with a handgun but denied having participated in the crime. In his third statement, Appellant claimed that he was ordered by an “OG” (“original gangster,” a senior street gang member) to monitor the robbery , and report back to the OG if the perpetrators “didn’t make it.” Appellant claimed that he did nothing more than watch the robbery from his car parked across the street and left when the first police officers arrived at the crime scene. He further claimed that he did not even know what store was to be robbed until he saw the perpetrators enter Gobe-na’s store.

Eventually, a grand jury indicted Appellant for capital murder. His case was tried to a jury. The trial court charged the jury on capital murder, murder, and the law of parties. Appellant requested charges on the lesser included offenses of robbery and aggravated robbery, but the trial court denied his request. The jury convicted Appellant of capital murder. At the punishment phase of trial, the jury found mitigating circumstances that warranted life imprisonment rather than the death penalty, and the trial court sentenced Appellant to life in prison. This appeal followed.

III. Discussion

A. Lesser included offenses

In his first point, Appellant argues that the trial court erred by failing to charge the jury with the lesser included offenses of robbery and aggravated robbery. We disagree.

To determine whether a jury must be charged on a lesser included offense, we apply a two-step analysis. Moore v. State, 969 S.W.2d 4, 8 (Tex.Crim.App.1998). The first step is to decide whether the offense is a “lesser included offense” as defined in article 37.09 of the code of criminal procedure. Tex.Code CRIM. ProC. Ann. art. 37.09 (Vernon 1981); Moore, 969 S.W.2d at 8. “An offense is a lesser included offense if ... it is established by proof of the same or less than all the facts required to establish the commission of the offense charged.” Tex.Code Crim. Proc. Ann. art. 37.09(1). Robbery, which requires a person to intentionally, knowingly, or recklessly cause bodily injury to another in the course of committing theft, and aggravated robbery (which is “robbery” with the additional element of use or exhibition of a deadly weapon) may be lesser included offenses of capital murder. Tex. Penal Code Ann §§ 29.02, 29.03 (Vernon 2003); see Martinez v. State, 131 S.W.3d 22, 39 (Tex.App.-San Antonio 2003, no pet.); Quintanilla v. State, 40 S.W.3d 576, 579 (Tex.App.-San Antonio 2001, pet. refd). Consequently, the first prong of the test is satisfied.

Second, some evidence must exist in the record that would permit a jury to rationally find that if the defendant is guilty, he is guilty only of the lesser offense. Rousseau v. State, 855 S.W,2d 666, 672-73 (Tex.Crim.App.), cert. denied, 510 U.S. 919, 114 S.Ct. 313, 126 L.Ed.2d 260 (1993); Royster v. State, 622 S.W.2d 442, 446 (Tex.Crim.App.1981). The credibility of the evidence and whether it conflicts with other evidence or is controverted may not be considered in determining whether the lesser included offense should be submitted. See Gadsden v. State, 915 S.W.2d 620, 622 (Tex.App.-El Paso 1996, no pet.). Regardless of its strength or weakness, if more than a scintilla of evidence raises the issue that the defendant was guilty only of the lesser offense, the charge must be given. Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App.1994); Saunders v. State, 840 S.W.2d 390, 391 (Tex.Crim.App.1992).

Nevertheless, an accused is guilty only of a lesser included offense if there is evidence that affirmatively rebuts or negates an element of the greater offense or if the evidence is subject to different interpretations, one of which rebuts or negates the crucial element. See Schweinle v. State, 915 S.W.2d 17, 19 (Tex.Crim.App.1996); Ramirez v. State, 976 S.W.2d 219, 226-27 (Tex.App.-El Paso 1998, pet. ref d). It is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense. See Skinner v. State, 956 S.W.2d 532, 543 (Tex.Crim.App.1997), cert. denied, 523 U.S. 1079, 118 S.Ct. 1526, 140 L.Ed.2d 677 (1998). A charge on the lesser offense is not required if a defendant’s evidence suggests that he committed no offense at all. Saunders v. State, 840 S.W.2d 390, 392 (Tex.Crim.App.1992); Ham v. State, 855 S.W.2d 231, 234 (Tex.App.-Fort Worth 1993, no pet.).

Appellant relies on his third written statement to police to justify inclusion of the lesser included offenses of robbery and aggravated robbery in the jury charge. According to that statement, Appellant was ordered by the OG simply to watch the robbery and report back to the OG if the perpetrators “didn’t make it.” Appellant watched the perpetrators enter and leave the store and then left the scene. Significantly, nothing in Appellant’s statement suggests that he conspired to commit the crime or participated in the robbery as a party. According to Appellant, he did not plan or take part in the robbery, was not there to act as a lookout for the perpetrators, and did not help them escape. Appellant’s third statement does not show that, if he was guilty of anything, he was guilty only of the lesser included offenses of robbery or aggravated robbery; rather, according to his own statement, Appellant committed no offense at all. Therefore, the trial court did not err by refusing to charge the jury on the lesser included offenses. We overrule Appellant’s first point.

B. Evidence of gang involvement

In his second point, Appellant argues that the trial court erred by allowing a police officer to testify about the nature, structure, and activities of criminal street gangs generally and the “Truman Street Blood” gang specifically. We disagree.

We review the trial court’s decision to admit or exclude evidence under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App.2001); Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App.1996), cert. denied, 520 U.S. 1200, 117 S.Ct. 1561, 137 L.Ed.2d 707 (1997); Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex.Crim.App.1990). The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court’s action; rather, it is a question of whether the court acted without reference to any guiding rules or principles, and the mere fact that a trial court may decide a matter within its discretionary authority differently than an appellate court does not demonstrate such an abuse. Montgomery, 810 S.W.2d at 391 (op. on reh’g). We will not reverse a trial court’s ruling on the admission of evidence as long as the ruling is within the zone of reasonable disagreement. Id. An appellate court will uphold the trial court’s ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. See Brito Carrasco v. State, 154 S.W.3d 127, 129 (Tex.Crim.App.2005); Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App.2002). The review of the trial court’s ruling is made “in light of what was before the trial court at the time the ruling was made.” See Brito Carrasco, 154 S.W.3d at 129; Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App.2000).

Evidence of gang affiliation is relevant to show a motive for a gang-related crime. Vasquez v. State, 67 S.W.3d 229, 239 (Tex.Crim.App.2002). Likewise, rule 404(b) expressly provides that evidence of other crimes may be admissible to prove motive. Tex.R. Evid. 404(b).

Over Appellant’s rule 403 and 404(b) objections, the trial court allowed Officer Wafeeq Sabire of the Fort Worth Police Department’s gang unit to testify about the hierarchy of, and promotion within, the Truman Street Bloods, a criminal street gang operating in Fort Worth. Appellant points specifically to the following testimony as erroneously admitted:

Q. Can people earn what’s called stripes in a gang?
A. Yes.
Q. How do you earn stripes?
A. Going out and committing criminal acts. Most of those acts can be misdemeanor acts but the OG [senior gangster] status is not claimed until you have committed an attempted murder or murder type offense, usually a very violent offense.
Q. Can it include a robbery?
A. Yes.

On appeal, Appellant concedes that some testimony regarding his membership in the Truman Street Bloods was relevant but argues that Sabire’s testimony was irrelevant and inadmissible character conformity evidence under rule 404(b).

Several witnesses testified that Appellant and Ta-Dow were members of the Truman Street Bloods. Appellant himself asserted in his third written statement that he was acting under orders from his gang’s OG. Sabire’s testimony about gang hierarchy and promotion was not just relevant but essential to put Appellant’s statement and the gang-related testimony of other witnesses into context. His testimony suggested a motive for Gobena’s slaying that would otherwise remain hidden.

We hold that the trial court did not abuse its discretion by admitting Sabire’s testimony over Appellant’s relevancy and rule 404(b) objections. We overrule Appellant’s second point.

IV. Conclusion

Having overruled both of Appellant’s points, we affirm the judgment of the trial court. See Tex.R.App. P. 43.2(a).


author: BRIAN QUINN, Chief Justice.

text:
    DEVON ENERGY PRODUCTION, L.P., and PennzEnergy Exploration and Production, L.L.C., Appellants, v. HOCKLEY COUNTY APPRAISAL DISTRICT, Appellee.
    No. 07-04-0005-CV.
    Court of Appeals of Texas, Amarillo.
    Nov. 3, 2005.
    Rehearing Overruled Jan. 6, 2006.

      Ronald D. Gray, Geary, Porter & Donovan, P.C., Addison, for appellant.
    Dylan Wood, Ray, Wood & Bonilla, Austin, for appellee.
    Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
   OPINION

BRIAN QUINN, Chief Justice.

Devon Energy Production Company, L.P. and PennzEnergy Exploration and Production, L.L.C. (collectively referred to as Devon) appeal from a judgment denying them relief against the Hockley County Appraisal District (Hockley District). Devon sued the Hockley District contending that the latter’s appraisal of the former’s working interest in an oil and gas reservoir was excessive and that it included within its appraisal property outside county boundaries. Because of these purported errors, the Hockley District’s appraisals over the years were void or otherwise unenforceable, Devon concluded. Trial was had, and judgment was entered denying Devon relief. The two issues before us concern the valuation of minerals by the Hockley District for ad valorem taxation and the trial court’s refusal to award Devon attorney’s fees. We reverse the judgment of the trial court.

Background

.Devon owned a working interest in an oil and gas lease, the M.G. Gordon, covering approximately 731 surface acres of land. Approximately 84% of the surface acreage (or 612.7 acres) lay in Hockley County, while 16% (or 118.3 acres) lay in Terry County. Furthermore, minerals were being produced from a reservoir encompassed by the lease and known as the Clearfork formation. The latter also crossed the Terry and Hockley County lines.

As previously mentioned, the dispute bé-fore us arose when the Hockley District attempted to value the minerals for purposes of ad valorem taxation. It did so by first valuing the entire Clearfork reserve included in the M.G. Gordon lease, irrespective of the county in which it lay. Next, it calculated the percentage of surface acres in the lease which were located within the boundaries of Hockley County. That percentage (84%) was then multiplied by the entire value of the Clearfork reserve previously derived, and the resulting sum purported to form the fair market value of the property upon which Devon’s ad valorem tax liability was based.

Devon questioned the manner of appraisal for, among other reasons, the calculation allegedly encompassed property outside county borders. That is, the evidence revealed that the boundaries of the Clearfork formation were not co-terminous with those of the M.G. Gordon lease. The former covered a smaller area than did the latter. More importantly, about 50% of the reserve actually was located in both Hockley and Terry Counties. Given this, the Hockley District could assess only 50% of the reservoir for tax purposes, so Devon argued.

The record further disclosed that the Terry County Appraisal District (Terry District) also valued the Clearfork reservoir for ad valorem taxation. It too calculated the fair market value of the entire Clearfork mineral interest in dispute. But, because only 50% of the formation lay within the boundaries of Terry County, it only assessed 50% of the whole for tax purposes.

So too does the record illustrate that upon combining the assessments derived by the Hockley District with that of the Terry District, the mineral formation at issue was effectively valued (for tax purposes) at 134% of its fair market value. Indeed, the Hockley District so stipulated. And, according to Devon, such an excessive valuation was prohibited by the Texas Constitution.

Issue One — Validity of Assessment

Devon initially challenges the assessment of the Hockley District by arguing that it fails to pass constitutional muster and because it included property outside Hockley County. We sustain the latter argument, and since it is dispositive of the appeal, we need not consider the former.

Applicable Law
The Texas Constitution provides:
No property of any kind in this State shall ever be assessed for ad valorem taxes at a greater value than its fair cash market value nor shall the Board of Equalization of any governmental or political subdivision or taxing district within this State fix the value of any property for tax purposes at more than its fair cash market value....

Tex. Const, art. VIII, § 20. Article VIII, § 11 of the same document further specifies that “[a]ll property, whether owned by persons or corporations shall be assessed for taxation, and the taxes paid in the county where situated. ...” Id. art. VIII, § 11.

Next, to perform the duties of assessing property for ad valorem taxation, the legislature created appraisal districts. Each county has one, Tex. Tax Code Ann. § 6.01(a) (Vernon 2001), and its boundaries generally are co-terminous with those of the county. Id. § 6.02(a). So too is each district statutorily charged with the responsibility of “appraising property in the district for ad valorem tax purposes of each taxing unit that imposes ad valorem taxes on property in the district.” Id. § 6.01(b). Statute further dictates that “[r]eal property is taxable by a taxing unit if located in the unit on January 1 ...,” id. § 21.01, and the burden lies with the unit to prove situs. Oake v. Collin County, 692 S.W.2d 454, 455 (Tex.1985) (holding that “a taxing authority must prove its entitlement to collect taxes by showing that the property it seeks to assess has a taxable situs within the limits of its boundaries”).

From the aforementioned statutes, one encounters a truism applicable to this case. It pertains to the situs of the property undergoing assessment and holds that the appraisal district may assess for taxation only that property within its district. Indeed, if 1) a district’s boundaries are coterminous with those of the county and 2) a district is responsible for assessing property within the district, then one must logically conclude that its assessment cannot include property outside the county.

Application of Law

The property undergoing appraisal here by the Hockley District consists of minerals beneath a particular tract of land. Yet, the borders of the zone wherein the minerals lay are not eo-terminous with those of the surface acres comprising the M.G. Gordon lease. Much like the chocolate in a marble cake, the minerals lay in specific areas within the whole. So too does the formation in which they are found traverse county lines. Given this, the Hockley District was prohibited from including within its assessment property laying outside Hockley County borders. Yet, the appraisal methodology utilized to determine the fair market value of the Clear-fork reservoir within Hockley County did not comport with this restriction.

Instead of using the geographic borders of the Clearfork reservoir as determinative, it adopted the surface acreage encompassed in the Gordon lease and within Hockley County as the relevant yardstick. Yet, no one disputes that the surface acreage and the sub-surface acreage containing the minerals were not the same here. Nor does anyone deny that 84% of the surface acreage had a situs in Hockley County while only 50% of the Clearfork reservoir lay within that county. So, as can be readily seen, the size of one was not the true measure of the other. And, when the greater was used as the measure of the smaller, than the difference had to come from somewhere. Logic permits us only to conclude that here, the difference came from that portion of the reservoir located within Terry County. Simply put, the Hockley District effectively incorporated 34% of the formation located in Terry County into its assessment.

In sum, if only 50% of the mineral formation being taxed lay within Hockley County, then the taxing units for whom the Hockley District valued the property could only tax 50% of the formation. And, because they could only tax 50% of the formation, the Hockley District could only assess 50% of the formation for tax purposes. Any creative appraisal methodology that ignored this limitation was and remains unacceptable. To paraphrase the words of Pink Floyd in its song “Money,” appraisal districts assessing property crossing county lines are entitled to “share it fairly but don’t take a slice of [the other’s] pie.” Moreover, that it may be difficult to accurately determine the actual size and location of the underground property is no reason to ignore restrictions imposed by law. After all, the taxing unit seeking to tax the property has the burden to establish that the realty lay within the unit’s border. Cake v. Collin County, supra. If it cannot, then it cannot lawfully tax the realty. And, if it cannot lawfully tax the realty, then the appraisal district has no authority to incorporate the realty into its assessment. Thus, we sustain the issue.

Issue Two — Attorney’s Fees

Through its remaining issue, Devon contends that the trial court erred in failing to award it attorney’s fees. The trial court did not consider awarding Devon attorney’s fees because it was not a prevailing party. This is no longer true, given our opinion in this cause. Therefore, we also remand this topic for reconsideration by the trial court. See Tex-Air Helicopters, Inc. v. Appraisal Review Board of Galveston County, 940 S.W.2d 299, 304 (Tex.App.-Houston [14th Dist.] 1997), aff'd, 970 S.W.2d 580 (Tex.1998) (refusing to award attorney’s fees under the Tax Code because the trial court mistakenly held that the claimant was not a prevailing party and had yet to have the opportunity to reconsider the issue once it was determined that the claimant was actually a prevailing party).

The Hockley District having assessed the value of the realty at issue in violation of the law, we reverse the judgment of the trial court and remand the cause.

      . Devon’s predecessor-in-interest was Pennz-Energy.

      . The stipulation read: "The different appraisal methodologies used by Hockley County Appraisal District and the Terry County Appraisal District result in the appraisal of Plaintiff's property at approximately one hundred thirty-four percent (134%) of its market value.”

      . To the extent that exceptions to this rule exist, no one argues that such exceptions were in play here.

      . We acknowledge that the boundaries of one appraisal district may extend into those of another if a taxing unit covered by the district itself has boundaries laying in two or more counties. Tex. Tax Code Ann. § 6.02(b) (Vernon 2001). Yet, again, no one argues that the facts of record permit application of § 6.02(b).

      . No one argues that the property rights accompanying the use of the surface (e.g. right to enter the land and explore) were included in the valuation of the property at issue. Indeed, while the language used by the appraisers to describe what they were valuing differed, all began by determining a value for the remaining recoverable reserves calculated through a discounted cash flow analysis. Consequently, our holding is restricted to the facts before us. Finally, the mode of valuing properties such as those involved at bar may be a matter ripe for legislative attention.


author: Opinion by Justice ROSS.

text:
    John ZINDA, Appellant, v. McCANN STREET, LTD., McCann Street General, Inc., C. Kyle Smith, G.P. Smith, III, and Cheyene Smith, Appellees.
    No. 06-04-00137-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Oct. 5, 2005.
    Decided Nov. 9, 2005.

      Frank Supercinski, Longview, for appellant.
    Stephen R. Patterson, Merriman, Patterson, Connolly & Hughes, LLP, Long-view, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by Justice ROSS.

John Zinda appeals from a judgment in a jury trial. Zinda had been a limited partner in McCann Street, Ltd. (the partnership). The other limited partners were brothers and sister, C. Kyle Smith, G.P. Smith, III, (Trey) and Cheyene Smith. McCann Street General, Inc. — of which Kyle and Trey were the controlling shareholders — was the corporate general partner. The partnership owned and operated a restaurant, the McCann Street Bar and Grill, which was managed by Zin-da. On learning Zinda had taken substantial sums out of the business coffers for his own use, the other partners foreclosed on his partnership interest and sold that interest. Zinda sued the partnership, its general partner, and the other limited partners, individually, for excluding (or evicting) him from the business and for a number of other wrongs allegedly resulting from their actions. Zinda did not prevail at trial on any of his allegations.

In response to Zinda’s suit against them, the partnership and partners, Kyle and Trey, sued Zinda for unpaid rent on the property, for failure to repay a personal note to Kyle and Trey, and for money allegedly due to Kyle on Zinda’s sale of a separate piece of property.

At the close of the evidence, the trial court granted a directed verdict in favor of Cheyene. The jury found in favor of the partnership and partners, Kyle and Trey, on all of their issues. Zinda appeals and names Cheyene as an appellee, even though Zinda does not appeal the directed verdict Cheyene was granted. Therefore, “appellees” in this opinion refers to the partnership, its general partner (McCann Street General, Inc.), and the other limited partners, Kyle and Trey (the Smiths).

Background Facts

The evidence shows that Zinda had owned and managed the restaurant individually until 1998. It burned, and the partnership was formed which borrowed money to rebuild the restaurant. It reopened in 2000. Zinda leased the building from the partnership for twenty years at $7,500.00 per month.

Zinda continued as the manager and paid rent (the $7,500.00 each month) to the partnership, while taking his salary from the business income. By August 2001, Zinda was two months behind on rent and went to the Smiths asking for help because of stock market problems emanating from his options trading. The Smiths personally loaned Zinda over $33,000.00, interest free, so he could pay the back rent and $17,000.00 in delinquent sales taxes. Zin-da made two payments on that loan, but none thereafter. As collateral for that note, he pledged his partnership interest in the partnership.

The Smiths later learned that, at the same time Zinda obtained the loan from them, he had deposited $54,000.00 into his options trading account. The evidence shows that, at about the same time, the Smiths encouraged Zinda to obtain help for his gambling problem, and the Smiths also suggested an increase in salary for Zinda so he could stop making draws from the operating account. The Smiths also learned that Zinda had not paid the Internal Revenue Service over $75,000.00 in payroll taxes and that Zinda had used money from the payroll taxes, sales taxes, and rental funds for his personal benefit. There was also evidence he had written checks to McCann entities, but then endorsed the checks and deposited them in his personal account.

The Smiths and the partnership officially notified Zinda January 28, 2002, that he was delinquent on his note and a month and a half behind on his rent. Although he did thereafter make partial payments, he did not bring the rent current. The Smiths were added as signatories to the operating account, and they then paid the suppliers as Zinda brought the invoices to them and, when money was available, made partial payments of rent from that account. In March 2002, the Texas Comptroller froze the operating account because of another delinquency, this time of over $23,000.00, in unpaid sales taxes. At that point, it became clear Zinda had been taking money from that account for his own use. By April 2, Zinda accumulated enough funds to pay the levied amount.

The Smiths evidently began to discuss with Zinda acquiring a fifty-one percent interest in the partnership until payments for the building were complete. While negotiating that matter, they discovered that Zinda again owed over $60,000.00 in unpaid payroll taxes, that he had used that money himself, and that checks written on the alcoholic beverage replacement account were bouncing because Zinda had been skimming from that account. On April 10, the Smiths began the process of foreclosure. The evidence shows that Zin-da arrived while the locks were being changed and that Zinda and the Smiths, at that point, discussed options that might keep the restaurant open. The Smiths proposed Zinda turn over operation of the restaurant, but continue as a host with a salary of $4,500.00 per month. The outstanding bills of suppliers were to be paid by the Smiths up to a maximum of $27,000.00, but with the amount of those bills to be taken off the back end of what was owed Zinda in salary. Zinda agreed to this arrangement and urged Fritz Kiri, the restaurant’s long-time assistant manager, and his wife, Barbie, a waitress, to stay with the operation. There is evidence Zinda apologized to the Kiris for “it happening,” which he attributed to his gambling and options trading.

Zinda remained as host of the restaurant for a few weeks, but when the Smiths received the alcoholic beverage replacement statement, it showed that, on April 10, Zinda had withdrawn another $2,500.00. According to the appellees, this was “the final straw.”

The case was tried to a jury. At the close of Zinda’s case, the court directed a verdict against Zinda’s claims for defamation, intentional interference with contracts between Zinda and his employees and suppliers, and that Zinda take nothing on his claim for malice. At the close of all evidence, the jury found (on the counterclaims) that the partnership was due $15,675.00 for. past-due rentals and late charges under the lease, that Kyle was due $18,000.00 on the sale of the “Bless Your Heart” property, and that the Smiths were entitled to $29,877.78 for the balance of a $33,050.00 note. The trial court granted judgment pursuant to the jury’s verdict and ordered the Smiths’ security interest in Zinda’s limited partnership interest be foreclosed.

Directed Verdict and Denial of Judgment Notwithstanding the Verdict

Zinda raises a series of arguments based on his contention the court erred by granting a directed verdict and by failing to grant a judgment notwithstanding the verdict on his allegations of (1) wrongful eviction; (2) breach of the covenant of quiet enjoyment; (3) breach of fiduciary duty; (4) conversion of the lease and his personal property; and (5) tortious interference with contract.

1. Wrongful eviction/breach of the covenant of quiet enjoyment

We first address Zinda’s contentions concerning wrongful eviction and breach of the covenant of quiet enjoyment. Zinda contends the court erred by failing to submit an issue to the jury on wrongful eviction because there was some evidence he was wrongfully evicted. His follow-up argument is that he proved, as a matter of law, he was wrongfully evicted and that the court thus also erred by overruling his motions for instructed verdict and judgment notwithstanding the verdict.

Rule 277 requires a trial court to submit instructions and definitions to the jury as are necessary to enable the jury to render a verdict. See Tex.R. Civ. P. 277; Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex.1992). The complaining party must establish that the error amounts to such a denial of rights as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Tex.R.App. P. 44.1; Island Recreational Dev. Corp. v. Republic of Tex. Sav. Ass’n, 710 S.W.2d 551, 555 (Tex.1986); Autry v. Dearman, 933 S.W.2d 182, 188 (Tex.App.-Houston [14th Dist.] 1996, writ denied). A judgment must be reversed when a party is denied proper submission of a valid theory of recovery or a vital defensive issue raised by the pleadings and evidence, if timely raised and properly requested as part of the charge. Exxon Corp. v. Perez, 842 S.W.2d 629, 631 (Tex.1992); Mayes v. Stewart, 11 S.W.3d 440, 455 (Tex.App.Houston [14th Dist.] 2000, pet. denied). The test is whether the request was reasonably necessary to enable a jury to render a proper verdict. However, if a court’s charge fairly and fully presents all controlling questions, it is not error to refuse to submit additional instructions that are mere shades or variations of the questions submitted. Carr v. Weiss, 984 S.W.2d 753, 766 (Tex.App.-Amarillo 1999, pet. denied).

Even assuming there was some evidence Zinda’s eviction was wrongful, we recognize the jury charge in this case contained a question asking whether the partnership had failed to comply with the terms of the lease. The jury found the partnership did not fail to comply. This necessarily covers the issue of whether Zinda was wrongfully evicted pursuant to the terms of the lease: if Zinda did not prove the partnership failed to comply with the terms of the lease, then Zinda did not prove the eviction was wrongful. The court therefore did not err by failing to submit the requested questions.

We now turn to Zinda’s contention the court should have rendered judgment notwithstanding the verdict on this issue. Judgment without or against a jury verdict is proper at any course of the proceedings only when the law does not allow reasonable jurors to decide otherwise. Accordingly, the test for legal sufficiency is the same for directed verdicts and judgments notwithstanding the verdict. City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex.2005). Under either scope of review, we view the evidence in the light most favorable to the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Id. at 807.

Zinda argues he conclusively proved the eviction was wrongful — focusing on an alleged failure to provide ten days’ written notice as called for by the lease after he became delinquent in rental payments. However, the jury had evidence before it that notice was presented January 28, 2002, that the actual lockout did not occur until April 10, 2002, and that Zinda did not bring his rent current during that time period. Thus, there is evidence the procedure was within the scope of the agreement, and no conclusive proof to the contrary.

Zinda alternatively contends the partnership did not comply with Tex. PROP. Code Ann. § 93.002(f) (Vernon 1995) because it did not put a written notice on the restaurant’s front door stating where Zin-da could obtain a new key, and that this constitutes a breach, as a matter of law, that would prevent the partnership from executing the eviction under the terms of •the agreement. The evidence does show that no notice was posted on the restaurant’s front door. Zinda testified, however, that he already had all the information such a notice would have provided. There is evidence that Zinda was present when the locks were being changed and that he and the Smiths had a meeting immediately thereafter to consider their options. Thus, unlike the absentee landlord situation that would be remedied by the posting of a formal notice on the door, there is no evidence Zinda was harmed by the failure to so post a notice where all parties were fully involved in the proceedings leading up to the changing of the locks.

2. Breach of fiduciary duty

Zinda also contends the evidence establishes breach of fiduciary duties to him by the appellees as a matter of law. Zinda argues it was a breach for the partnership representatives, the Smiths, to evict him, and for them to contact the Kiris to find out if they would continue to work there if Zinda was gone. Zinda also argues that, because the partnership took over the books before eviction, it had the duty to pay rent first from gross income and thus avoid his ultimate eviction — and that failing to do so was a breach of the partnership’s fiduciary duty to him. Zinda therefore contends the other limited partners breached that duty by failing to be fully candid with him and failing to disclose their intention to.take over the business, by engaging in self-dealing by contacting the “key” employees (the Kiris), and by not generally behaving in a manner that put his interests first.

Fiduciary duties arise as a matter of law in certain formal relationships, including attorney-client, partnership, and trustee relationships. Ins. Co. of N. Am. v. Morris, 981 S.W.2d 667, 674 (Tex.1998). The relationship among the various parties was a partnership; thus, the appellees owed fiduciary duties to Zin-da.

Partners have a duty to one another to make full disclosure of all matters affecting the partnership and to account for all partnership profits and property. Tex.Rev.Civ. Stat. Ann. art. 6132b-4.04 (Vernon Supp.2005); Bohatch v. Butler & Binion, 905 S.W.2d 597, 602 (Tex.App.Houston [14th Dist] 1995), aff'd, 977 S.W.2d 543 (Tex.1998). Partners owe one another a fiduciary duty, including a strict duty of good faith and candor. Brosseau v. Ranzau, 81 S.W.3d 381, 394 (Tex.App.Beaumont 2002, pet. denied).

There is evidence the appellees had intended Zinda remain as the manager of the restaurant. There is also evidence that the Smiths made an interest-free loan to help Zinda catch up on rent and on unpaid sales taxes, that they encouraged him to stop gambling and seek help, and that they only ensured he was unable to make draws from the operating accounts after repeated problems involving the use of funds from that account for other purposes. The evidence shows that the appellees ensured that operating expenses (suppliers’ invoices) were paid from that account. The evidence also shows that, despite having sent a notice to Zinda, the appellees did not finally evict Zinda until they became aware that, in March 2002, the State Comptroller had levied on the business due to nonpayment of taxes, and that Zinda had been using sales tax receipts for other purposes. The appel-lees also learned of Zinda’s second payroll tax deficiency with the Internal Revenue Service and about Zinda’s withdrawals from the restaurant’s alcoholic beverage replacement account.

Zinda focuses his argument on what he terms as the appellees’ failure to clearly inform him of their intent'to take his business, and that, up until the moment they locked him out of the restaurant, they did not deal honestly with him when they told him they were still working with him.

There is evidence the appellees warned Zinda of the consequences of his conduct well before they acted to remove him from the partnership. Zinda argues that their actions thereafter diluted that intent to the point he did not realize he was actually in danger of eviction. However, the jury had all the evidence, and we cannot say that its conclusion the appellees had not violated their fiduciary duties is without support. The evidence does show that the appellees attempted to keep the partnership with Zinda viable for some time, but also that they finally reached the end of their willingness to find ways to work past major problems. A responsibility to act as a fiduciary is not equivalent to a responsibility to forgive and attempt to assist a recalcitrant partner forever, but instead to treat him or her with utmost fairness. The jury could have concluded from this evidence the appellees had adequately executed their duties. There is evidence to support the verdict, and there is not conclusive evidence to the contrary. The contention of error is overruled.

3. Conversion of the lease and Zinda’s personal property

Zinda next contends he conclusively proved that the result of the wrongful eviction was the unlawful conversion of his property. As discussed above, there is evidence the eviction was not wrongful. In that instance, Zinda’s argument has no foundation and is overruled.

4. Tortious interference with contract

Zinda next contends the appellees took actions that constituted tortious interference with his contracts — notes with the White Oak State Bank and the Longview Bank and Trust — that were related to the purchase of items used in the restaurant. The argument appears to be that the interference occurred when the partnership did not use proceeds from the restaurant to pay those notes. The argument is not well developed, and there is no reference to any particular acts or any citation to the record that might be pursued to determine the object of this contention. We assume it is directed at the jury’s answer of “No” to questions 5 and 7, in which it was asked whether the appellees had intentionally interfered with a contract between Zinda and the respective banks..

There is evidence the available funds were used to keep the restaurant in operation. Keeping the restaurant afloat by paying the businesses that provided its products is necessary and appropriate. Counsel has directed us to no evidence to show this was done with intent to interfere with Zinda’s notes. There is evidence of other, proper, purposes for the appellees’ behavior. The contention has not been shown to have merit. It is overruled.

Failure To Recover Damages and Attorney’s Fees

Zinda next raises several contentions involving proof of his damages, the correct amounts thereof, and attorney’s fees he should be able to recover because of his successful presentation of the case on appeal. Based on our resolution of the issues above, we need not address these contentions.

Appellees’ Counterclaims

1. Past-due rentals and late charges

Zinda contends a jury finding that he owes $15,675.00 in past-due rentals and late charges is not supported by sufficient evidence. The argument, however, relies on his position the appellees had failed to comply with their fiduciary duties—by paying suppliers’ bills before paying on Zinda’s rent out of the income stream of the business. Because of our resolution of those issues against Zinda, we also need not address this argument.

2. “Bless Your Heart” property

Zinda contends the jury’s answers to questions finding that Zinda had agreed to pay Kyle ten percent of the gross revenue received from the sale of a separate “Bless Your Heart” property is unsupported by the evidence. Zinda bases this contention on his position that, because a stock exchange between Kyle and himself provided the consideration for the ten percent, and because only oral evidence of this stock exchange was introduced, the statute of frauds precludes recovery. Zinda’s contention appears to be that, because, at the time of the oral agreement, there was no time for performance (i.e., to sell the realty), the oral agreement is unenforceable. He relies on our opinion in Wiley v. Bertelsen, 770 S.W.2d 878, 882-83 (Tex.App.-Texarkana 1989, no writ), as authority for his position.

In Wiley, we were faced with an argument by a ranch manager that “there was an oral contract between him and his employers which provided that he was to receive one third of the proceeds from the ranch and cattle, less their purchase price, when they were sold.” Id. at 880. Several arguments were raised, including the statute of frauds and the question of the enforceability of an oral contract. We recognized, however, that the statute of frauds does not apply to an agreement to pay a certain sum of money out of the proceeds of a future sale of land. Id. at 881 (citing Berne v. Keith, 361 S.W.2d 592 (Tex.Civ.App.-Houston 1962, writ ref d n.r.e.)).

The only remaining question raised by Zinda concerning the statute of frauds is whether the alleged oral agreement was “an agreement which is not to be performed within one year from the date of making the agreement.” Tex. Bus. & Com.Code Ann. § 26.01 (Vernon Supp.2005) provides, in pertinent part, the following:

(a) A promise or agreement described in Subsection (b) of this section is not enforceable unless the promise or agreement, or a memorandum of it, is
(1) in writing; and
(2) signed by the person to be charged....
(b) Subsection (a) of this section applies to:
(6) an agreement which is not to be performed within one year from the date of making the agreement;....

In Wiley, the ranch manager argued he was required to work for ten years before the contract became performable. This had the effect of making the oral agreement unenforceable because it was not to be performed within one year from the date of the agreement. That does not apply to this case. The evidence indicates the payment was to be made on the sale of the property, which could have occurred within one year or after a longer time period.

Further, we have recently recognized that partial performance is an exception to the statute of frauds. Bookout v. Bookout, 165 S.W.3d 904, 907 (Tex.App.-Texarkana 2005, no pet.); see also Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429, 439 (Tex.App.-Dallas 2002, pet. denied). The partial performance must be “unequivocally referable to the agreement and corroborative of the fact that a contract actually was made.” Bookout, 165 S.W.3d at 907; Exxon Corp., 82 S.W.3d at 439. Actions relied on to establish the partial performance exception to the statute of frauds must be such as could have been done with no other design than to fulfill the particular agreement sought to be enforced; otherwise, they do not tend to prove the existence of the parol agreement relied on by the plaintiff. Bookout, 165 S.W.3d at 907-08; Exxon Corp., 82 S.W.3d at 439-10.

In this case, as in our recent opinion in Bookout, an issue on partial performance was not presented to the jury. As we recognized there, generally, the party claiming an exception to the statute of frauds must secure a finding to that effect. Barbouti v. Munden, 866 S.W.2d 288, 295 (Tex.App.-Houston [14th Dist.] 1993, writ denied). Its absence would be fatal to an appellee’s counterclaim unless a finding on partial performance is otherwise implied by law. We reasoned in Bookout that, because the statute of frauds had been triggered and would bar recovery unless the plaintiff established partial performance of the contract, partial performance was a condition precedent to, and therefore was functionally an element of, the breach of contract ground of recovery.

As in Bookout, the question of sufficiency of evidence to support an implied finding of partial performance is before this Court. The evidence is relatively straightforward in that respect. Kyle testified he had exchanged stock with Zinda in return for the ten percent interest in income from the “Bless Your Heart” property, and for ten percent of any sale of that property. That evidence is not controverted and clearly shows a partial performance of the agreement. The implied finding of partial performance is supported by the evidence, so the contract is enforceable.

3. Foreclosure

Zinda contends the foreclosure judgment on his partnership interest is a nullity that must be set aside. His contention is based on the underlying argument that, rather than selling the restaurant property, the partnership should have wound up the partnership’s affairs. That matter does not appear to have been raised at trial, other than possibly in an objection Zinda made to the admission into evidence of a copy of the deed of trust covering the restaurant property. In his last amended answer, Zinda pled that “[a] deed of trust does not give a valid Ken on a personal property partnership interest,” and he now attempts to apply that language in his appellate arguments.

It appears Zinda is arguing that the vehicle of foreclosure was not the right one to use. However, he fails to specify why this is true, other than arguing that a deed of trust from him to the partnership cannot be used to authorize sale of the property by the partnership. But, Zinda also states the partnership owns all tangible partnership property.

The judgment is in the nature of an order of accounting. It foreclosed the Smiths’ security interest in Zinda’s limited partnership interest, and the order directed the seizure and sale of any available collateral. This is in accordance with the terms of the “Deed of Trust, Security Agreement & Financing Statement,” whereby Zinda gave to the Smiths a deed of trust to his 18.92% interest in the partnership to secure all his indebtedness to them. Although Zinda suggests the foreclosure was of the real estate, that is not precisely correct—it was of his interest in the partnership.

When read in that light, Zinda’s argument is not persuasive because the document partially entitled as the “Deed of Trust” is actually much more than a real property device in this instance.

Improper Evidence

Zinda next contends evidence was erroneously admitted at trial. He does not specify which evidence, but states, “Their counsel emphasizes the poisonous matters in his closing argument.” He argues that the “poisonous” evidence necessarily resulted in an improper judgment. It appears Zinda is referring to evidence of his gambling, options trading, and misuse of money from the sales tax and payroll tax accounts. He suggests that, because his motion in limine was overruled, his contention is properly before us. That evidence, however, was initially brought out in his own testimony on direct examination by his own counsel.

Because a trial court’s ruling on a motion in limine preserves nothing for review, a party must object at trial when the testimony is offered in order to preserve error for appellate review. Hartford Accident & Indem. Co. v. McCardell, 369 S.W.2d 331, 335 (Tex.1963); Greenberg Traurig of New York, P.C. v. Moody, 161 S.W.3d 56, 91 (Tex.App.-Houston [14th Dist.] 2004, no pet.).

In this case, Zinda did not object to the admission of the evidence at trial and, in fact, propounded it himself. The claim of error has not been preserved for appellate review.

Simulated Transaction Instruction

Zinda contends the court erred by failing to charge the jury on the concept of a sham transaction. He contends this is the type of transaction in which the partnership engaged by first paying vendors instead of paying rent. In his trial amendment, Zinda alleged that the “simulated transactions” of the defendants nullified and voided his lockout and eviction by them.

After examining the mass filing of proposed jury questions and instructions, it does not appear Zinda requested a question or instruction on that topic. Thus, the failure to submit such a question is not error. Tex.R. Civ. P. 278.

Commercial Bribery and Theft

Zinda also contends the court erred by failing to charge the jury on the questions of commercial bribery and theft. Rule 278 of the Rules of Procedure requires the court to submit questions raised “by the written pleadings and the evidence.” Tex.R. Civ. P. 278. As pointed out by the appellees, the issues of commer-eial bribery and theft were not pled. Thus, no error is shown.

Malice and Exemplary Damages

The malice issue was pled and a draft question was provided by Zinda. The court declined to submit the issue and had, in fact, rendered a directed verdict against Zinda on that issue. Zinda contends this was error because there was some evidence of malice. In support, Zinda focuses on the discussions the appellees had with key restaurant employees before the lockout, the lockout itself, and Zinda’s perception that the appellees deceived him by telling him, right up to the moment they locked him out, that they were trying to help him.

Under current law, “malice” is defined as “a specific intent by the defendant to cause substantial injury or harm to the claimant.” Tex. Civ. pRAC. & Rem.Code Ann. § 41.001(7) (Vernon Supp.2005); Clayton v. Wisener, — S.W.3d-,-, No. 12-03-00251-CV, 2005 WL 1404992, at ⅝5, 2005 Tex.App. LEXIS 4543, at *26 (Tex. App.-Tyler June 15, 2005, no pet. h.). Even under the most liberal construction of this evidence, it does not show “a specific intent to cause substantial injury or harm.” Under a directed verdict review, we look to see if there is some evidence to the contrary. In this case, we find none. Thus, the court’s granting of a directed verdict on the issue of malice was proper.

Further, the issue of malice is pertinent to Zinda’s attempt to recover exemplary damages. The jury determined Zinda was not due any actual damages. Therefore, exemplary damages were not available, and even if error existed, it would necessarily be harmless. See Tex. Civ. PRAC. & Rem.Code Ann. § 41.004(a) (Vernon Supp.2005).

Summary and Conclusion

In summary, the trial court did not commit error in its granting of directed verdict or in its denial of Zinda’s motion for judgment notwithstanding the verdict; Zinda was not entitled to the recovery of damages or attorney’s fees; judgment on the appellees’ counterclaims was proper; evidence of Zinda’s gambling, options trading, and misuse of money was proper; and no error is shown in the trial court’s failure to charge the jury on simulated transactions, commercial bribery, theft, or malice.

For these reasons, we affirm the judgment.

      . First names are used to distinguish between those with a common last name.

      . There is no separate argument on the covenant of quiet enjoyment; thus, it is treated along with the eviction issue.

      . Zinda also contends the court erred by denying his motion seeking summary judgment on those grounds. This issue is not properly before us. In general, an order granting a summary judgment may be appealed, but an order denying a summary judgment may not. Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex.1994); Novak v. Stevens, 596 S.W.2d 848, 849 (Tex.1980). An exception to the rule prohibiting appeal when a motion for summary judgment has been denied exists when both parties file motions for summary judgment and the court grants one and overrules the other. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 400 (1958).

      . We point out that conversion was pled, and the jury decided against Zinda on that issue. See Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 166 (Tex.2002).