author: MICHAEL MASSENGALE, Justice.

text:
    MARINER HEALTH CARE OF NASHVILLE, INC. d/b/a Mariner Health of Southwest Houston, Appellant, v. Gladys ROBINS, Individually and on Behalf of the Estate of Betty Battle, Deceased, Appellee.
    No. 01-08-00830-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    July 1, 2010.

      Brian P. Johnson, Tamara M. Madden, Johnson, Trent, West & Taylor, LLP, Lauren B. Harris, Porter & Hedges LLP, Houston, TX, for Appellant.
    Scot G. Dollinger, Dollinger Law, Houston, TX, for Appellee.
    Panel consists of Justices KEYES, SHARP, and MASSENGALE.
   OPINION

MICHAEL MASSENGALE, Justice.

Appellee Gladys Robins sued appellant Mariner Health Care of Nashville, Inc. Robins asserted claims for medical malpractice under the Texas Wrongful Death Act and the Texas Survival Statute, alleging that her mother, Betty Battle, suffered injuries and died due to negligent nursing home care. See Tex. Civ. Prac. & Rem.Code Ann. §§ 71.001-.012 (Vernon 2008) (wrongful death action); id. § 71.021 (survival action).

A jury found in favor of Robins only on the survival action, and the jury awarded her $750,000, which the trial court reduced to $250,000. See Tex. Civ. Prac. & Rem. Code Ann. § 74.301(b) (Vernon 2005) (capping noneconomic damages at $250,000). Although other wrongful death beneficiaries were plaintiffs at trial, Robins is the sole appellee in this appeal, which pertains only to the survival action.

Mariner brings four issues on appeal: (1) Robins lacks standing or capacity to pursue claims on behalf of Battle’s estate, and therefore the claims are barred by the statute of limitations; (2) the trial court abused its discretion by sustaining two challenges to peremptory strikes; (3) the evidence was legally and factually insufficient to support the jury’s findings on negligence, proximate cause, and damages; and (4) the trial court improperly submitted to the jury a broad form question pertaining to damages.

We affirm.

BACKGROUND

Betty Battle lived in southwest Houston with her adult sons Robert Charles Robin and Dexter Leon Battle. In addition, her adult daughters Gladys Robins, Sandra Jean McGowan, and Lucille Marie Brown lived nearby and visited frequently. Battle smoked approximately one to one-and-one-half packs of cigarettes daily.

In March 2004, Battle fell while grocery shopping and broke her hip. After undergoing hip replacement surgery at St. Luke’s Hospital, she went to Mariner for rehabilitation. Her primary physician was Dr. Khoa Nguyen, who was not a Mariner employee. Dr. Nguyen testified that when Battle was admitted she did not have any pressure ulcers (also known as bedsores), but the medical records from St. Luke’s indicated that she had an excoriation, or the beginning of a pressure ulcer, on her buttocks when she was transferred to Mariner. Dr. Nguyen testified that when Battle entered Mariner, she was confused but in a good mood and presented with poor nutrition and some kidney disease. While at Mariner, Battle developed anemia and stage-3 and stage-4 pressure ulcers, which were worsening. A “stage — 3” pressure ulcer exists when “full thickness of skin is lost, exposing the subcutaneous tissues- — presents as deep crater with or without undermining adjacent tissue.” A pressure ulcer is classified as “stage 4” when “full thickness of skin and subcutaneous tissue is lost, exposing muscle or bone.”

Dr. Nguyen sent Battle to Park Plaza Hospital for a blood transfusion, and from there Battle went to Select Specialty Hospital to receive care for her pressure ulcers. She returned to Mariner, still suffering from stage-4 pressure ulcers. According to Dr. Nguyen these were, in part, the same pressure ulcers she developed during her first stay at Mariner.

Battle died on August 18, 2008 at the age of sixty-six. Dr. Nguyen listed cardiopulmonary arrest as the cause of death on Battle’s death certificate, but he testified that it was not possible to determine the cause of death with certainty because no autopsy was performed.

At trial, the medical testimony centered on the pressure ulcers and the multiple other medical conditions from which Battle suffered and their effect on the healing or exacerbation of the wounds. Testimony showed that Battle suffered from hypertension, diabetes, kidney problems, dehydration, malnutrition, possible dementia, and heart problems. Some, but not all, of these conditions were known to Battle’s children before her admission to Mariner.

In addition, conflicting testimony was presented about Battle’s cooperation with her caregivers. For example, Dr. Nguyen testified that he had no specific memory of Battle’s noncomphance, but there were notes in the medical records that she refused to be cleaned after incidents of incontinence, refused to be repositioned or insisted on staying in the same position for lengthy periods of time, refused to eat, declined to participate in physical therapy, and continued to smoke even after being told that it would hamper her healing. Robins explained that her mother’s refusal to be repositioned was related to pain and that her mother did not like the food she was served.

Robins and her siblings sued Mariner for medical malpractice under the wrongful death act and survival statute. Although the pleadings stated that Robins sued “on behalf of’ her mother’s estate, no probate proceedings were ever initiated. Mariner, however, did not file a verified pleading — or any pleading — contesting Robins’s capacity to sue.

At trial, Mariner’s counsel used four peremptory strikes to exclude four of six prospective African-American jurors. Robins’s counsel asked the trial court to examine the strikes of those four venire-members, alleging that Mariner’s strikes were racially motivated. The trial court overruled the challenge as to two prospective jurors who had made statements suggesting they held biases related to the facts of the case, sustained the challenge as to the other two prospective jurors, and seated one of the challenged venire-members on the jury.

Both Robins and Mariner presented expert testimony regarding Mariner’s actions and the applicable standards of care. The evidence centered not only on Battle’s pressure ulcers, but also on missing paperwork: no care plan appeared in Mariner’s records for Battle’s second admission.

The jury found in Mariner’s favor on the wrongful-death claim and awarded $750,000 to Robins on the survival action. The trial court reduced the award to $250,000 in accordance with the statutory cap on damages. Mariner appealed.

STANDING, CAPACITY, AND LIMITATIONS

In its first issue, Mariner contends that it is entitled to judgment as a matter of law because Robins never pleaded or proved that she has standing or capacity to assert Battle’s survival claims. Mariner argues that although Robins filed suit within two years after Battle’s death, her failure to demonstrate standing or capacity in the trial court means that the claims are now time barred. In response, Robins argues that Mariner has confused the issues of standing and capacity. She contends that her trial testimony established her standing to sue on behalf of her mother’s estate and that Mariner has waived any complaint as to her capacity to sue.

I. Standard of Review and Applicable Law

A. Standing and Capacity

A plaintiff must have both standing and capacity to bring a lawsuit. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex.2005). “Standing is a necessary component of a court’s subject matter jurisdiction.” Alpert v. Riley, 274 S.W.3d 277, 291 (Tex.App.-Houston [1st Dist.] 2008, pet. denied) (citing Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444-45 (Tex.1993)). “The issue of standing focuses on whether a party has a sufficient relationship with the lawsuit so as to have a ‘justiciable interest’ in its outcome, whereas the issue of capacity ‘is conceived of as a procedural issue dealing with the personal qualifications of a party to litigate.’ ” Lovato, 171 S.W.3d at 848 (citing 6A ChaRles Alan Wright et al„ Federal Practice and Procedure § 1559, at 441 (2d ed. 1990)). Separate from the issue of a party’s standing, a party’s capacity implicates its legal authority to file a lawsuit and pursue a particular cause of action. Lovato, 171 S.W.3d at 847-48. “A plaintiff has standing when it is personally aggrieved, regardless of whether it is acting with legal authority; a party has capacity when it has the legal authority to act, regardless of whether it has a justicia-ble interest in the controversy.” Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661 (Tex.1996) (emphasis in original).

To demonstrate standing, a plaintiff must affirmatively show, through pleadings and other evidence pertinent to the jurisdictional inquiry, a distinct interest in the asserted conflict, such that the defendant’s actions have caused the plaintiff some particular injury. Alpert, 274 S.W.3d at 291 (citing Hunt v. Bass, 664 S.W.2d 323, 324 (Tex.1984)). If a party lacks standing, a trial court lacks subject-matter jurisdiction to hear the case. Lovato, 171 S.W.3d at 849. Thus, standing cannot be waived and can be raised for the first time on appeal. Id. Because a court’s subject-matter jurisdiction is a question of law, Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004), whether a plaintiff has standing is a legal question we determine de novo. Alpert, 274 S.W.3d at 291; see Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998).

An alleged defect in capacity must be raised by a verified denial in the trial court. Lovato, 171 S.W.3d at 849. The failure to raise the issue of capacity through a verified plea results in waiver of that issue both at trial and on appeal. Tex.R. Civ. P. 93; see Pledger v. Schoellkopf 762 S.W.2d 145, 145-46 (Tex.1988) (“When capacity is contested, Rule 93(2) requires that a verified plea be filed anytime the record does not affirmatively demonstrate the plaintiffs or defendant’s right to bring suit or be sued in whatever capacity he is suing.” (emphasis in original)); Intracare Hosp. N. v. Campbell, 222 S.W.3d 790, 793 n. 2 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (“The Texas Rules of Civil Procedure require that a defendant challenging a plaintiffs capacity to sue raise the matter by verified pleading, if lack of capacity is not evident from the petition.”). The burden is on the defendant to challenge a plaintiffs capacity to sue. Lovato, 171 S.W.3d at 853 n. 7; Intracare Hosp. N., 222 S.W.3d at 793 n. 2.

B. Survival Act Claim

When a person dies, all of the decedent’s real and personal property become part of an estate, including any actual or potential cause of action. Tex. Prob.Code Ann. § 3(i), (z) (Vernon Supp. 2009); Lovato, 171 S.W.3d at 850 & n. 2. When a person dies without a will, title to the decedent’s property vests immediately in his heirs, subject to the payment of debts. Tex. Prob.Code Ann. § 37 (Vernon 2003). Thus, a personal injury action survives the death of an injured person to and in favor of the heirs, legal representatives, and estate. Tex. Civ. Prac. & Rem.Code Ann. § 71.021 (Vernon 2008); Lovato, 171 S.W.3d at 849 (noting that statute abrogated common-law rule that personal injury claims do not survive death of injured person).

In Lovato, the plaintiff’s mother died intestate after suffering from pressure ulcers she developed while a resident at Austin Nursing Center. Lovato, 171 S.W.3d at 846-47. Lovato filed suit on behalf of her mother’s estate, purportedly as its personal representative, but at the time suit was initially filed Lovato had not filed an application for independent administration of the estate. Id. at 847. After limitations ran, the probate court appointed Lovato independent administrator of the estate, and Lovato amended the petition in her survival action. Id. The trial court granted summary judgment in favor of Austin Nursing Center based on limitations because a person with standing did not timely assert the survival action. Id. The court of appeals reversed, reasoning that Lovato’s post-limitations amended petition related back to the time of the original filing and cured her “defective standing.” Id.

The Texas Supreme Court wrote at length to clarify the difference between standing and capacity. Id. at 848-54. In a footnote, the Court distinguished its own precedents and other opinions from the courts of appeals that confused standing with capacity, id. at 851 n. 3, concluding that “in a survival action, the decedent’s estate has a justiciable interest in the controversy sufficient to confer standing.” Id. at 850.

II. Analysis

Robins asserted a survival claim in both her individual capacity as an heir and as a purported representative of Betty Battle’s estate seeking recovery for both wrongful-death and survival-act claims. The survival action alleged that before her death, Battle suffered from pressure ulcers that she developed while a resident at Mariner. Immediately prior to her death, Battle was personally aggrieved by Mariner, and her potential cause of action against Mariner became part of her estate at the moment of her death. See Tex. Prob.Code Ann. § 3(1), (z) (Vernon Supp. 2009). Under Lovato, Battle’s estate has a justiciable interest in this controversy sufficient to confer standing. Lovato, 171 S.W.3d at 850.

However, Mariner also challenges Robins’s capacity to bring the suit. The survival statute provides that a personal representative, administrator, or heir may sue on behalf of an estate. Tex. Civ. Prac. & Rem.Code Ann. § 71.021(b) (Vernon 2008). “[G]enerally, personal representatives of the decedent’s estate are the only people entitled to sue to recover estate property.” Shepherd v. Ledford, 962 S.W.2d 28, 31 (Tex.1998); but see Lovato, 171 S.W.3d at 850 (distinguishing between standing and capacity). However, “[h]eirs at law can maintain a survival suit during the four-year period the law allows for instituting administration proceedings if they allege and prove that there is no administration pending and none necessary.” Shepherd, 962 S.W.2d at 31-32.

Mariner argues that Robins did not plead and prove that administration of Battle’s estate was unnecessary. See generally Tex. Prob.Code Ann. §§ 178 et seq. (Vernon Supp. 2009) (governing appointment of administrators). Mariner thus contends that Robins’s failure to initiate an administration should be fatal to the survival claim. Contrary to Mariner’s assertion, Robins testified at trial that no administration of her mother’s estate was necessary. Robins testified that all of Battle’s heirs were plaintiffs in this lawsuit, that she had been designated by the heirs to act on their behalf, that Battle died intestate, that all of Battle’s debts had been paid and all of her assets had been equally divided among her heirs, that probate proceedings were not initiated, and that there was no need for an administration. See id. § 178(b) (administration of estate is necessary only “if two or more debts exist against the estate, or if or when it is desired to have the county court partition the estate among the distribu-tees, or if the administration is necessary to receive or recover funds or other property due the estate”).

Nevertheless, we need not resolve this issue on the merits because Mariner has waived it. Mariner did not file a verified pleading contesting Robins’s capacity to bring this survival action as required by Rule of Civil Procedure 93. Tex.R. Civ. P. 93; see Pledger, 762 S.W.2d at 145-46. Rather than asserting this issue at a time when the trial court could have abated the case to permit Robins to initiate probate proceedings, Mariner chose to wait until the close of evidence to first raise this issue in the trial court and by urging it on appeal in support of its argument that Robins’s claims are now time barred. We hold that Battle’s estate had standing to sue and that Mariner waived its challenge to Robins’s capacity to represent Battle’s estate. We overrule Mariner’s first issue.

CHALLENGE TO PEREMPTORY STRIKES

In its seeond issue, Mariner challenges the trial court’s action sustaining Robins’s challenge as to two of Mariner’s peremptory strikes.

I. Standard of Review

In Batson v. Kentucky, the United States Supreme Court declared that racially motivated use of peremptory challenges in criminal cases violates due process of law and requires reversal. 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In Edmonson v. Leesville Concrete Co., the Court applied Batson’s reasoning to civil trials. 500 U.S. 614, 618-28, 111 S.Ct. 2077, 2081-87, 114 L.Ed.2d 660 (1991); see Goode v. Shoukfeh, 943 S.W.2d 441, 444-45 (Tex.1997).

We review a trial court’s ruling on a Batson challenge for abuse of discretion. Goode, 943 S.W.2d at 446; Jack v. Holiday World, 262 S.W.3d 42, 48 (Tex.App.-Houston [1st Dist.] 2008, no pet.); Baker v. Sensitive Care-Lexington Place Health Care, Inc., 981 S.W.2d 753, 757 (Tex.App.Houston [1st Dist.] 1998, no pet.). A trial court abuses its discretion if its decision is arbitrary, unreasonable, and without reference to guiding principles. Goode, 943 S.W.2d at 446.

Resolution of a Batson challenge is a three-step process: (1) the party challenging the strike must establish a prima facie case of racial discrimination; (2) if the party challenging the strike does so, the striking party must come forward with a race-neutral explanation; and (3) if the striking party does so, the party challenging the strike must prove purposeful racial discrimination. Miller-El v. Dretke, 545 U.S. 231, 239, 125 S.Ct. 2317, 2324-25, 162 L.Ed.2d 196 (2005); Goode, 943 S.W.2d at 445-46.

II. Yoir Dire

During voir dire, both attorneys brought up the issue of missing paperwork or missing medical records, which was a central issue in the case. One prospective juror, who was African-American, stated that he would be biased against Mariner due to missing paperwork, although he later stated that he could be fair. Both attorneys also addressed the issue of bedsores to determine if panel members had any personal or familial experience on that subject. Another African-American veniremember stated that her mother had developed pressure sores and that they healed.

III. Challenge to Mariner’s Peremptory Strikes

After both sides exercised their peremptory strikes, Robins’s counsel alleged that Mariner’s strikes of four of the six African-American veniremembers were racially motivated. The trial court overruled Robins’s challenge as to two prospective jurors: the one who stated that her mother had suffered from pressure ulcers that had healed and the one who stated that he had an issue with missing medical records. However, the trial court sustained Robins’s challenges as to Collins, who was seated on the jury, and Williams, who was a potential alternate juror and who did not serve in any capacity.

A. Williams

Because Williams was not seated as a juror or an alternate juror, the trial court’s action in sustaining Robins’s Bat-son challenge as to him did not affect the composition of the jury. Therefore, it could not have caused the rendition of an improper judgment or prevented Mariner from presenting its case on appeal. Even if the trial court abused its discretion in sustaining this challenge — a matter upon which we offer no opinion — any error would be harmless as a matter of law. See Tex.R.App. P. 44.1(a). Therefore, we will focus our analysis on the propriety of the trial court’s action regarding Collins.

B. Collins

Collins did not speak at all during voir dire. After Robins’s counsel made a prima facie case that Mariner’s strikes were racially motivated, Mariner offered its race-neutral explanation for striking Collins. See Miller-El, 545 U.S. at 239, 125 S.Ct. at 2324. Mariner’s counsel stated that he had excluded Collins because of her occupation and nonverbal conduct. Mariner’s counsel stated that he believed that she would “be a stickler for paperwork” because she was a public school teacher. In addition, Mariner’s counsel stated, “[Djuring the plaintiffs’ voir dire, [she] was basically making good eye contact with plaintiffs’ counsel. My sense is: She found him to be charming and amusing. I felt like — I disagree with that. I had poor eye contact with her.”

At that point, the trial court had to determine if Robins had proven purposeful discrimination and if it believed Mariner’s proffered explanation. Baker, 981 S.W.2d at 756. None of Collins’s nonverbal conduct appears on the record, except as described by Mariner’s counsel. Collins did not respond to the questions about paperwork, and Mariner’s counsel did not specifically question her about that issue. See Whitsey v. State, 796 S.W.2d 707, 713-14 (Tex.Crim.App.1989); Lott v. City of Fort Worth, 840 S.W.2d 146,151 (Tex.App.-Fort Worth 1992, no writ). Based upon our review of the record, we have no reason to conclude that the trial court exceeded its discretion to disbelieve Mariner’s explanation for its strikes as pretextual. See Davis v. Fisk Elec. Co., 268 S.W.3d 508, 518-19 (Tex.2008).

Moreover, even if the trial court had erred in sustaining the Batson chai-lenge, we may not reverse a judgment unless we conclude that the trial court’s error “probably caused the rendition of an improper judgment” or “probably prevented the appellant from properly presenting the case to the court of appeals.” Tex. R.App. P. 44.1(a). Here, the verdict form shows that Collins did not vote in favor of the verdict on the controlling questions of liability, comparative fault, and damages, upon which the trial court based its judgment. Because Collins apparently sided with Mariner- — or believed that Robins did not prove her case — Mariner cannot show that any error of the trial court affected the judgment. Thus, we conclude that the error, if any, was harmless. See id.

We hold that Mariner has not shown that the trial court abused its discretion in sustaining Robins’s challenge to Ms. Collins. We overrule Mariner’s second issue.

LEGAL AND FACTUAL SUFFICIENCY

In its third issue, Mariner contends that the evidence was legally and factually insufficient to support the jury’s findings that Mariner was negligent, that Mariner’s negligence proximately caused Battle’s injuries, and that Battle suffered physical pain and mental anguish compensable by the damages award of $250,000. The jury awarded $750,000 in damages, but the trial court reduced this to $250,000 in its judgment. See Tex. Civ. Prac. & Rem.Code Ann. § 74.301(b) (Vernon 2005) (capping non-economic damages in suits against health care institutions).

I. Standard of Review

In a legal sufficiency, or “no-evidence” review, we determine whether the evidence would enable reasonable and fair-minded people to reach the verdict under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). In making this determination, we credit favorable evidence if a reasonable fact-finder could, and we disregard contrary evidence unless a reasonable fact-finder could not. Id. We consider the evidence in the light most favorable to the finding under review and indulge every reasonable inference that would support it. Id. at 822. So long as the evidence falls within the zone of reasonable disagreement, we may not substitute our judgment for that of the fact-finder. Id. at 822. The trier of fact is the sole judge of the credibility of the witnesses and the weight to give their testimony. Id. at 819. Although we consider the evidence in the light most favorable to the challenged findings, indulging every reasonable inference that supports them, we may not disregard evidence that allows only one inference. Id. at 822.

In reviewing a challenge to the factual sufficiency of the evidence, we must consider and weigh all the evidence and should set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996) (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986)); Arias v. Brookstone, L.P., 265 S.W.3d 459, 468 (Tex.App.-Houston [1st Dist.] 2007, pet. denied).

The jury is the sole judge of witnesses’ credibility; it may choose to believe one witness over another, and a reviewing court cannot impose its own opinion to the contrary. Wilson, 168 S.W.3d at 819; Arias, 265 S.W.3d at 468. Because it is the jury’s province to resolve conflicting evidence, we must assume that the jury resolved all conflicts in accordance with its verdict if reasonable human beings could do so. Wilson, 168 S.W.3d at 819; Arias, 265 S.W.3d at 468.

II. Negligence and Proximate Cause

In a medical malpractice case, the plaintiff is required to show evidence of a reasonable medical probability that the injury was proximately caused by the defendant’s negligence. Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex.1995); Duff v. Yelin, 751 S.W.2d 175, 176 (Tex.1988). The plaintiff must prove: (1) a duty on the part of the defendant to act according to applicable standards of care; (2) a breach of the applicable standard of care; (3) an injury; and (4) a causal connection between the breach of the standard of care and the injury. Ocomen v. Rubio, 24 S.W.3d 461, 466 (Tex.App.-Houston [1st Dist.] 2000, no pet.).

The causation element of a negligence claim comprises the two following components: the cause in fact, or “substantial factor,” component and the foreseeability component. IHS Cedars Treatment Ctr. v. Mason, 143 S.W.3d 794, 798 (Tex.2003); Leitch v. Hornsby, 935 S.W.2d 114, 118-19 (Tex.1996); Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992). Foreseeability requires that a person of ordinary intelligence would have anticipated the danger caused by the negligent act or omission. Doe v. Boys Clubs, 907 S.W.2d 472, 478 (Tex.1995). Because both elements are required, a party who establishes only that an injury was foreseeable cannot prevail. Grider v. Mike O’Brien, P.C., 260 S.W.3d 49, 57 (Tex.App.-Houston [1st Dist.] 2008, pet. denied).

“In a medical malpractice case, breach of the standard of care and proximate cause must be established through expert testimony.” Ocomen, 24 S.W.3d at 466. Opinion testimony that amounts to “mere conjecture, guess, or speculation” is not sufficient. IHS Cedars Treatment Ctr., 143 S.W.3d at 798-99; Price v. Divita, 224 S.W.3d 331, 337 (Tex.App.-Houston [1st Dist.] 2006, pet. denied). Expert opinion testimony that is conclusory or speculative does not tend to make the existence of a material fact “ ‘more probable or less probable,’ ” and it is neither relevant nor competent. Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex.2004) (quoting Tex.R. Evid. 401). Evidence that shows only that the defendant’s alleged negligence did no more than furnish a condition that made the alleged injuries possible will not suffice to establish the substantial-factor, or cause-in-fact, component of proximate cause. See IHS Cedars Treatment Ctr., 143 S.W.3d at 799.

A. Mariner’s Contentions

Mariner contends that the evidence was legally and factually insufficient to support the jury’s finding that Mariner was negligent and that its negligence proximately caused Battle’s injuries because (1) Dr. Lipson did not identify any specific employee who provided improper care, (2) Dr. Lipson was not qualified to testify, and (3) Dr. Lipson did not testify specifically how Mariner’s alleged deficiencies caused Battle to develop pressure ulcers. We will address each of these contentions.

a. Identification of Mariner Employees

First, Mariner argues that Dr. Lipson’s testimony was insufficient because he did not identify any specific Mariner employee who provided improper care. Mariner relies on cases in which pretrial expert reports were deemed inadequate because they did not specify a specific standard of care for each of multiple defendants. E.g., CHCA Mainland, L.P. v. Burkhalter, 227 S.W.3d 221, 227 (Tex.App.-Houston [1st Dist.] 2007, no pet.); Gray v. CHCA Bayshore, L.P., 189 S.W.3d 855, 859 (Tex.App.-Houston [1st Dist.] 2006, no pet.); Doades v. Syed, 94 S.W.3d 664, 671-72 (Tex.App.-San Antonio 2002, no pet.); Rittmer v. Garza, 65 S.W.3d 718, 723 (Tex.App.-Houston [14th Dist.] 2001, no pet.). For example, in Gray, this Court held that an expert report was inadequate because it identified only one standard of care with respect to two separate defendants: a hospital and a doctor. Gray, 189 S.W.3d at 859. However, the Texas Supreme Court has held that when a party’s alleged health care liability is purely vicarious, a pretrial report that adequately implicates the actions of that party’s agents or employees is sufficient. Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671 (Tex.2008) (per curiam). In Gardner, the plaintiff sued both the doctor and the owner and operator of the facility where the procedure was performed. Id. at 670. The pretrial expert report implicated only the doctor, but the plaintiffs argued that the facility’s liability was purely vicarious, and the Texas Supreme Court concluded that the report was sufficient. Id. at 671.

In this case, Robins sued only one defendant: Mariner, a nursing home, which is a health care provider under the Civil Practice and Remedies Code. Here, Robins’s theory of the case was that, although Mariner acted through its employees, it owed— and breached — certain duties to Battle that a nursing home owes its patient. Dr. Lipson testified specifically about the responsibilities and standards of care for a nursing home or “skilled nursing facility,” as required by the Code of Federal Regulations. Lipson testified:

They’re required to provide for nursing care, rehabilitation care, pharmacy and dietary care, physician care. They’re required to make assessments that are comprehensive, as well as renewed assessments. They’re required to set up a plan of care, which is individualized and quantitative, for her. They’re required to notify the family and the physician/care provider for changes in condition. They’re required to follow what’s called the “rights of the resident” for dignity and other things. And they’re required to have a facility that is home — like, that has a safe environment, and that basically treats people with respect — as I mentioned — and that there’s good quality of life in the facility, and that various health areas are treated adequately and completely.

Based on his experience, training, and his review of the requirements in the Code of Federal Regulations, Dr. Lipson also testified about the actions a skilled nursing facility like Mariner should take in caring for a patient, such as:

To provide for adequate nutrition and hydration; to provide a safe environment and prevent injury; to prevent skin breakdown and pressure ulcer formation; to monitor for safety and appropriateness of medications; to provide adequate medical care and oversight; to prevent recurrent or occurring infections; to prevent falls; to prevent aspiration; to prevent loss of mobility and contracture formation — basically to have a plan of care that is followed that will allow for the highest practicable level of physical, mental, and psychosocial function; to follow physician orders for the care, unless the physician is questioned by the people who are carrying out the orders — in this case, the nursing staff— and then that has to be resolved; to provide complete and accurate assessments of the health problems and disabilities, which are updated; provide adequate and complete document changes in — document changes in condition, health status, when appropriate — intake and output, vital signs, dispensing of medications and provision of treatment — to notify the charge nurse or supervisor nurse, the physician and family about changes in conditions and health status; to assess for pain and prevent it and treat it; to monitor for changes in mental status and behavior, notify physician and family of changes; and monitor use of psychotropic medications for altered behavior and/or mental status, and side effects.

Robins’s theory of recovery was not simply that Mariner was responsible for the negligence of its employees, who may have breached the standards of care for their particular professions or specialties, but that Mariner itself was negligent in carrying out its duties as a health care provider. Thus, we conclude that in order to support his opinion testimony Dr. Lipson was not required to identify specific Mariner employees who behaved negligently.

b. Qualifications to testify about standards of care

Second, Mariner contends that Dr. Lipson was not qualified to testify because he did not establish any nursing qualifications and because his medical degree did not qualify him to render an opinion on nursing. Mariner did not challenge Dr. Lipson’s qualifications before or during trial. Therefore, Dr. Lipson’s qualifications were a matter for the jury to consider in determining the weight to give his testimony. Cf Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409-10 (Tex.1998).

Dr. Lipson testified that he had been a physician, researcher, and consultant for nearly 40 years. He testified that he graduated from Johns Hopkins Medical School and completed fellowships at the National Institutes of Health, Massachusetts General Hospital, Harvard Medical School, Beth Israel Hospital, and Brigham and Women’s Hospital (in geriatric medicine). In addition, he worked at Harvard’s skilled nursing facility and became a fellow to the Institute for Advanced Studies on Gerontology at the Ethel Percy Andrus Gerontology Center at the University of Southern California (USC). He served as medical faculty at several medical schools, teaching and lecturing in the fields of geriatric care, and he studied medication and its side effects on senior citizens at the Geriatric Research Institute. He also testified that, for 13 years, he provided quality assurance and oversight for six state-run nursing homes in Alaska, he worked as a primary caregiver in skilled nursing facilities, he set up two teaching nursing homes under the auspices of USC, and he worked as a consultant in the areas of nursing-home care and senior care for the California Department of Justice, the New Mexico Attorney General, and United States Departments of Justice and Health and Human Services, reviewing over 6,000 patient charts and visiting more than 450 nursing homes.

We conclude that a reasonable jury could have credited Dr. Lipson’s testimony as that of an expert on nursing homes and geriatric care.

c. Expert testimony should not be conjecture

Third, Mariner alleges that Dr. Lipson did not describe how Mariner’s alleged deficiencies in care specifically injured Battle. Mariner also contends that Dr. Lipson’s testimony was no more than testimony about “mere possibilities” and suggests that Battle’s injuries would have occurred regardless of Mariner’s acts or omissions. In its brief, Mariner argued, “Since the jury could only speculate as to whether Battle would have developed these decubitus ulcers, one which developed before her arrival at Mariner, and several which Mariner was able to heal before her death, there is insufficient evidence to show Mariner’s conduct caused injury to Battle.”

Dr. Lipson testified that Mariner was negligent in caring for Battle and that this negligence proximately caused Battle’s injuries and death. Dr. Lipson testified that Mariner’s negligence “caused her to develop painful, deep, necrotic pressure ulcers, which became infected. It caused her malnutrition and dehydration, and placed her at risk of renal failure.” Dr. Lipson then identified specific standards of care that Mariner breached and explained how these breaches injured Battle.

Dr. Lipson testified that Mariner was required to establish a complete and comprehensive care plan for each of Battle’s admissions and that it breached this standard of care because the care plan for Battle’s first admission was not comprehensive and there was no care plan for Battle’s second admission in Mariner’s records. Dr. Lipson testified that a care plan was vital to ensure that all caregivers understand facility policies and know how to treat the patient. He further testified that the first care plan was deficient because it did not plan for hydration or aspiration control, address range-of-motion issues, or assess and coordinate her care based on her existing and foreseeable medical conditions.

Dr. Lipson testified that Mariner breached the standard of care for hydration because there was insufficient information in her medical records pertaining to intake and output and because Battle was clinically dehydrated (as shown by laboratory testing) for much of the time she resided at Mariner. He testified that dehydration, for example, could impact renal function, dementia in a senior citizen, inhibit skin healing, and increase likelihood of developing pressure ulcers. Furthermore, inadequate hydration was responsible for other medical conditions from which Battle suffered, such as diabetes and bedsores. Dr. Lipson testified that Mariner’s breach of the standard of care for hydration injured Battle by contributing to her urinary tract infection, her lethargy and confusion, and the development and worsening of her pressure ulcers. In addition, he testified that Mariner’s breach injured Battle by putting her “at risk” for renal insufficiency and renal failure.

Dr. Lipson testified that Mariner also breached the standard of care for nutrition. He said that Mariner knew Battle suffered from protein malnutrition when she was admitted and that it had a duty to establish a diet plan to provide for adequate protein and supplementation. He testified that it failed to do so. In addition, during Battle’s second admission, Mariner failed to establish a diet plan to address Battle’s diabetes. Dr. Lipson opined that Mariner’s breach of this standard of care injured Battle by contributing intermittently to her confusion and lethargy and by exacerbating her pressure ulcers.

Dr. Lipson also testified that Mariner breached the standard of care regarding aspiration. He testified that Mariner’s records showed that Battle experienced “frank aspiration.” He testified that Mariner was required to assess Battle’s ability to swallow, upon admission and periodically thereafter, establish a diet for a patient experiencing dysphagia, elevate the head of her bed, and feed her in an upright position. Dr. Lipson testified that nothing in the records showed that Mariner took these steps. He concluded, “[Tjhere was inadequate assessment and care planning and actual hands-on care in the area of dysphagia and aspiration prevention.” Dr. Lipson testified that Mariner’s breach of this standard of care caused Battle to experience frank aspiration and aspiration bronchitis.

Dr. Lipson testified that Mariner was required to have ongoing pain assessment and to manage Battle’s pain with her lethargy and confusion. He opined that Mariner breached the standard of care for pain management on both admissions because the records showed no ongoing pain assessment protocol and because there were “times when [Battle] got adequate pain relief, but on the whole there was no adequate pain control program for her and Mariner allowed her to be in pain for portions of each day.” For example, Dr. Lipson testified that pressure ulcers are painful and a patient would be in pain every time she was turned. According to Mariner’s records, Battle sometimes received pain medication before her dressings were changed, but at other times, she did not receive medication. Dr. Lipson testified that Mariner’s breach of this standard of care injured Battle not only by allowing her to experience pain but also by making her less likely to move and putting her at risk for exacerbation of her pressure ulcers. In addition, Dr. Lipson said that lack of pain management increased the risk that Battle would not eat or drink and would develop contracted extremities. Other evidence was introduced that Battle did not move for long periods of time, resisted being repositioned, and sometimes refused to eat.

Dr. Lipson testified that Mariner breached the standard of care for preventing pressure ulcers during both of Battle’s admissions. He opined that “had she been treated with standard care when she first arrived at Mariner, in all reasonable medical probability her skin excoriations would have healed.” He stated that Mariner was required to assess Battle’s risk for skin breakdown and development or pressure ulcers in light of her contributing medical factors, like dehydration, malnutrition, and mobility. He determined that Mariner breached this standard of care because the medical records showed that Battle spent long periods of time sitting in her wheelchair and because the records did not indicate that Battle was regularly and consistently turned or repositioned. Dr. Lipson testified that Mariner’s breach of the standard of care injured Battle by allowing her skin excoriations to “develop into two stage IV necrotic-infected pressure ulcers before she left the facility for the first time” and exacerbated her pressure ulcers during her second admission. He also testified that the records showed that Battle’s pressure ulcers were intermittently infected, as evidenced by notations about “necrotic” ulcers, foul odors, and blood-tinged discharge, which are signs of infection. Finally, he acknowledged that pressure sores can be clinically unavoidable, but he testified that in Battle’s case they were avoidable and “their healing ... would have occurred had she gotten standard care.”

Finally, Dr. Lipson testified that Mariner breached the standard of care for infection prevention. He testified that Mariner was required to have an infection-control program because Battle had an infection, Clostridium difficile (C. diff.), upon admission to Mariner. He testified that C. diff. can occur as a result of antibiotic use but that it also can spread from person to person in institutions as a result of poor hygiene. He testified that Mariner breached the standard of care by not having a documented control program for C. diff. and by not taking proper precautions to ensure that fecal matter did not contaminate her sacral pressure ulcer. Dr. Lip-son testified that Mariner’s breach injured Battle by allowing her to have recurrent or continual reinfection with C. diff. and by contaminating her open wounds, which could “potentially produce a systemic infection.”

There was no evidence at trial that Battle suffered from sepsis (a systemic bacterial infection), and both Dr. Nguyen, Bat-tie’s treating physician, and Dr. Garcia (Mariner’s expert) testified that Battle did not suffer from sepsis.

B. Application of Standard of Review

Mariner contends that the evidence was legally and factually insufficient to support the jury’s finding that Mariner was negligent and that Mariner’s negligence proximately caused Battle’s injuries because Dr. Lipson did not specifically identify any negligent Mariner employee, he was not qualified to opine on the standard of care applicable to Mariner, and he did not specifically testify how Mariner breached the standard of care but merely testified about possibilities. As discussed above, in the course of offering his opinion Dr. Lipson was not required to identify any particular Mariner employee in this suit against Mariner. Mariner did not challenge Dr. Lipson’s qualification as an expert at trial, and ample evidence was introduced regarding his education, experience, and credentials regarding geriatrics and nursing homes. Finally, Dr. Lipson identified several specific standards of care that he believed were breached by Mariner, and he explained how Mariner breached the standards of care and how Mariner’s breach injured Battle. Viewing the evidence in the light most favorable to the verdict, we conclude that Dr. Lipson’s testimony was legally sufficient to show that Mariner breached a duty owed to Battle to act according to applicable standards of care and that these breaches injured Battle. See City of Keller, 168 S.W.3d at 827; Ocomen, 24 S.W.3d at 466.

As to factual sufficiency, we note that there is a conflict in the evidence as to Mariner’s breach of the standard of care for infection prevention. Dr. Lipson testified that Mariner’s breach could have potentially caused Battle to suffer from sepsis, but there was no evidence introduced at trial that she actually did suffer from sepsis and both Dr. Nguyen and Dr. Garcia, who testified for Mariner as a expert in geriatric medicine, said that Battle did not suffer from sepsis. Dr. Garcia also reviewed Battle’s medical records, but Dr. Garcia concluded that Mariner did not breach the applicable standards of care and that Battle’s injuries and death resulted from her medical conditions that existed before she became a resident at Mariner. Dr. Garcia also testified that Battle’s smoking and lack of cooperation with staff contributed to the exacerbation of her pressure ulcers.

Mariner makes no argument that the evidence of negligence and proximate cause is factually insufficient because Dr. Lipson’s testimony was outweighed by that of other expert witnesses. Rather, Mariner argues only that Dr. Lipson’s testimony was insufficient. See Ocomen, 24 S.W.3d at 466 (“In a medical malpractice case, breach of the standard of care and proximate cause must be established through expert testimony.”). Thus we have addressed Mariner’s primary source of controverting testimony in only a summary manner.

It is the province of the jury to resolve conflicting evidence, to determine the credibility of the witnesses, and to weigh their testimony. See City of Keller, 168 S.W.3d at 819; Arias, 265 S.W.3d at 468. Thus, having reviewed the record, we conclude that the judgment was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Ortiz, 917 S.W.2d at 772; Arias, 265 S.W.3d at 468. We hold that the evidence was legally and factually sufficient to support the jury’s verdict as to negligence and proximate cause.

III. Damages and Evidence of Pain and Mental Anguish

Mariner also contends that the evidence was legally insufficient to support the jury’s finding that Battle suffered pain and mental anguish compensable by $250,000. In its brief, Mariner argues first that there is no evidence or factually insufficient evidence of pain and suffering and second that there is no evidence or factually insufficient evidence of mental anguish.

A.Broad Form Submission

When a party contends that there is no evidence to support the submission of a specific element of damages in a broad-form jury question, the party must object before the charge is read to the jury. Harris County v. Smith, 96 S.W.3d 230, 236 (Tex.2002). Here, the jury was asked to award lump-sum damages for both pain and mental anguish. Mariner argues on appeal that there is no evidence to support an award either for pain and suffering or for mental anguish, but Mariner did not object to the inclusion of these elements of damages in a broad-form question before it was read to the jury. Thus, Mariner is limited to challenging the evidence to support the lump-sum award for physical pain and mental anguish. See Brookshire Bros., Inc. v. Lewis, 997 S.W.2d 908, 922 (Tex.App.-Beaumont 1999, pet. denied) (“[T]o successfully challenge a multi-element damage award on appeal, an appellant must address all of the elements and show the evidence is insufficient to support the .entire damage award.”).

B.Pain, suffering, and mental anguish

Conscious pain and suffering may be established by circumstantial evidence. E.g., HCRA v. Johnston, 178 S.W.3d 861, 871 (Tex.App.-Fort Worth 2005, no pet.). Matters of pain and suffering are necessarily speculative, and it is within the province of the jury to set the amount of such damages. Hicks v. Ricardo, 834 S.W.2d 587, 591 (Tex.App-Houston [1st Dist.] 1992, no writ). We give a jury’s determination of the amount of damages a great deal of discretion. Id. (citing Green v. Meadows, 527 S.W.2d 496, 499 (Tex.Civ.App.-Houston [1st Dist.] 1975, writ ref'd n.r.e.)). “Once the existence of some pain and suffering has been established ... there is no objective way to measure the adequacy of the amount awarded as compensation.” Johnston, 178 S.W.3d at 871. Put another way, “[t]he process of awarding damages for amorphous, discretionary injuries such as ... pain and suffering is inherently difficult because the alleged injury is a subjective, unliquidated, nonpecu-niary loss.” Id.

C.Sufficiency of the Evidence

Mariner argues, “There is simply no evidence to support the trial court’s award of $250,000 for pain and suffering for Battle. No witness testified that Battle in fact experienced any pain.” But Robins testified that Battle experienced pain:

Q. What was your understanding as to the primary reason why your mom was resistant to having the nursing folks move her, especially in the beginning?
A. She was in pain. And the way that they were moving her, she felt like they were hurting her.
Q. Okay. In other words, it wasn’t — it wasn’t a personal issue?
A. No. It was a pain issue.

Battle’s treating physician testified that pressure ulcers are usually very painful, though some patients experience more pain than others. Dr. Lipson also testified about “painful” pressure ulcers and noted that Battle only sporadically received adequate pain relief. While Dr. Garcia testified that there was no evidence that Mariner failed to manage Battle’s pain adequately, she did not testify that Battle did not experience pain while residing at Mariner.

Viewing the evidence in the light most favorable to the judgment, we conclude that reasonable and fair minded people could have concluded that Battle suffered some pain as a result of the injuries sustained while residing at Mariner. See City of Keller, 168 S.W.3d at 827; Johnston, 178 S.W.3d at 871. In addition, we conclude that the judgment was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Ortiz, 917 S.W.2d at 772; Arias, 265 S.W.3d at 468. We hold that the evidence was legally and factually sufficient to support the damages judgment. We overrule Mariner’s third issue.

CHARGE ERROR

In its fourth issue, Mariner contends that the trial court erred in submitting Question 7 of the trial court’s jury charge. Questions 1 and 2 inquired about the cause of Battle’s death and invited the jury to apportion responsibility between Battle and Mariner for her death. Question 6 inquired about damages related to Battle’s death and was conditioned upon the jury’s answers to questions 1 and 2. Questions 3 and 4 asked about the cause of Battle’s injuries and invited the jury to apportion responsibility between Battle and Mariner for her injuries. Question 7 depended on the jury’s answers to questions 3 and 4 and asked, “What sum of money would have fairly and reasonably compensated Betty Battle for pain and mental anguish? ‘Pain and mental anguish’ means the conscious physical pain and emotional pain, torment and suffering experienced by Betty Battle before her death as a result of the injury in question.” Question 8 concerned punitive damages.

At the charge conference, Mariner objected to questions 1, 2, 3, and 8 on the basis that there was no evidence or legally insufficient evidence to support the submission of those issues to the jury. In addition, Mariner requested an instruction relating to questions 1 and 3 and objected to question 3 on the grounds that the plaintiffs were not entitled to recover under both wrongful death and survival theories and were not entitled to recover personal injury damages. The trial court denied Mariner’s requested instruction and overruled its objections. Mariner did not object to question 7.

Mariner now argues that question 7 was improperly submitted in broad form because it commingled damages for pain and mental anguish despite an absence of evidence that Battle experienced mental anguish and because it implied that Battle died as a result of the injuries she suffered while at Mariner.

Objections to the charge must be presented to the trial court “before the charge is read to the jury.” Tex.R. Civ. P. 272. An objection not presented to the trial court during this time is waived. Id.; see also Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 387, 389 (Tex.2000) (requiring that jury-charge objection be timely). “A party objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection.” Tex.R. Civ. P. 274; Castleberry v. Branscum, 721 S.W.2d 270, 276 (Tex.1986).

Mariner argues that it preserved its appellate issue that question 7 was improperly submitted in broad form by objecting to question 3 on the grounds that the plaintiffs were not entitled to recover under both wrongful death and survival theories and were not entitled to recover personal injury damages. We disagree. An objection to one jury question that plaintiffs are not entitled to recover under two separately pleaded and legally cognizable theories applicable to a nursing-home negligence case is different from an objection to a different jury question that the type of damages recoverable under two separately pleaded theories should not be submitted in broad form. Mariner’s objections to question 3 did not communicate to the trial court its complaint on appeal about question 7. See Tex.R. Crv. P. 274; Castleberry, 721 S.W.2d at 276. We hold that Mariner did not preserve its jury-charge challenge, and we overrule Mariner’s fourth issue.

CONCLUSION

Having considered and overruled each of Mariner’s issues, we affirm the judgment of the trial court.


source: Caselaw Access Project

author: ELSA ALCALA, Justice.

license: Public Domain

text:
    Joe B. GULLEY Jr. and Imelda Gulley, Appellants, v. Wirt DAVIS, II, individually, Catherine B. Taylor, individually, Valley Oak Investments, L.P., Camilla R. Blaffer and Texas Gulf Bank, N.A., Co-Trustees of The Camilla B. Mallard Trust, Joan B. Johnson and Bessemer Trust Co., Co-Trustees of The Joan B. Johnson Trust, and PDB Properties, Ltd., Appellees.
    No. 01-08-00572-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    July 1, 2010.

      Joe B. Gulley III, Golden & Owens, Randall C. Owens, Houston, TX, Vincent L. Marable, III, Paul Webb, P.C., Wharton, TX, for Appellants.
    F. Franklin Honea, J. Robert Beatty, Locke, Liddell & Sapp, Dallas, TX, John Zukowski, Zukowski, Bresenhan & Sinex, Houston, TX, Shayne D. Moses, Moses, Palmer & Howell, Fort Worth, TX, for Appellees.
    Panel consists of Chief Justice RADACK and Justices ALCALA and HIGLEY.
   OPINION ON REHEARING

ELSA ALCALA, Justice.

Appellants, Joe B. Gulley Jr. and Imelda Gulley (“the Gulleys”), have filed a motion for rehearing. We deny rehearing but withdraw our opinion and judgment of April 14, 2010 and substitute this opinion and judgment in their place.

In this case involving adverse possession of the mineral rights in a 52-acre tract, the Gulleys appeal from a summary judgment in favor of appellees, Wirt Davis, II, individually; Catherine B. Taylor, individually; Valley Oak Investments, L.P.; Camilla R. Blaffer and Texas Gulf Bank, N.A., co-trustees of the Camilla B. Mallard Trust; Joan B. Johnson and Bessemer Trust Co., co-trustees of the Joan B. Johnson Trust; and PDB Properties, Ltd. (collectively, “the Davises”). In three issues, the Gulleys assert the trial court erred by excluding a deed and six affidavits from summary-judgment evidence and by granting summary judgment in favor of the Davises. We conclude the error, if any, in excluding the deed is not reversible error and any error in excluding the affidavits is waived. We further conclude the trial court properly granted summary judgment on the grounds that the evidence established as a matter of law the possession in this case was not exclusive of and adverse to the title owner of the property. We affirm.

Background

In 1835, the State of Coahuila and Texas granted one league of land in Polk County, Texas to Lowrey T. Hampton (“the League”), and, through various conveyances, George Davis acquired title to all the real property within the League. This case concerns a dispute over ownership of the minerals in a 52-acre tract located within the League. The Davises claim to be the successors in interest to George Davis and his wife, Camilla Davis. The Gulleys claim to be the successors in interest to William and Rosia Moore.

In the 20 years between 1872 and 1892, George Moore, William’s father, was the tenant of George Davis. In 1872, George Davis leased the entire League to George Moore. In 1879, George Davis conveyed 200 acres out of the League to George Moore. These 200 acres did not include the 52 acres at issue in this case. At the same time, George Moore conveyed to George Davis “all my right, title or claim to the [League] ... save and except those Two Hundred acres of said League ... this day conveyed by said Davis to me by metes and bounds in a Deed now in my possession therefor.” The 1879 deed also stated, in pertinent part,

This Instrument is also given by me to said Davis to Evidence the fact that I am his tenant of said League representing and holding the same. All save and except the above mentioned Two Hundred acres for him and those he may represent in the premises.
That I am agent for him and them and will look after said Land and protect the same from trespassers and assist them in the sale thereof at such prices and such times as said Davis may from time to time direct and that I will on demand of him said Davis surrender up the possession of said Land to him ... whenever called for and allow no one else to occupy same without the consent of said Davis given either to me or to such persons as he may designate.

(Emphasis added). In 1884, George Moore sold his 200 acres and moved to another part of the League, where he built his homestead on a 143-acre tract. In 1888, George Davis sold 120 acres of the League to a party not involved in this case. In 1892, George Moore’s son William, who by then was 20 years of age, married Rosia Thomas. William and Rosia began living on a portion of the League that included the 52-acre tract presently at issue.

In 1898, the District Court of Polk County rendered judgment in a lawsuit concerning the League that included the 52-acre tract at issue here. The lawsuit, styled Prussia Harney, et al. v. Geo. S. Davis, et al., had been filed in 1889 and both George Davis and George Moore were named defendants. William Moore was not a party to the suit. This judgment adjudicated title to the entire League as of 1898 to George Davis, less the 320 acres in the sales described above. The 1898 judgment recites that George and Ann Moore “have claimed” the land in the League, less the 320 acres sold, as tenants in possession for George Davis. The judgment states,

[TJhe said defendants Geo. A. Moore and his wife Ann M. Moore being shown to be tenants in possession of said defendant Geo. W. Davis for whom alone they claim and have claimed said Land in controversy herein it is ordered and adjudged that they go hence without day [sic] and recover of said plaintiffs their costs herein respectively incurred....

Thus, in 1898, George Davis was the titleholder of the entire League (less the 320 acres he conveyed to George Moore and the third-party as described above).

The same year the Prussia Harney judgment was rendered in 1898, George Davis died, leaving the League to his wife, Camilla. Approximately six years later, in 1904, Camilla conveyed 3,948 acres of the League to William Carlisle and Company, reserving the mineral estate — including the mineral estate to the 52-acre tract presently at issue — for herself. Shortly after that, George Moore died.

In 1909, almost five years after Camilla had sold the surface acres to which she held title in the League to William Carlisle and Company, William and Rosia Moore conveyed 78 acres of a 130-acre tract out of the League to William Carlisle and Company. William and Rosia Moore excepted from the grant the 52 acres involved in this case. In pertinent part, the 1909 deed states,

The said William Moore and Rosia E. Moore wife of the said William Moore hereby covenant and agree with the said William Carlisle and Company that they have occupied, claimed and been in peaceable possession of the 130 acre tract first above described, for more than 10 years prior to this date.

Thus, the 1909 deed that sells 78 adjacent acres to William Carlisle and Company states that William and Rosia Moore “occupied, claimed, and [had] been in peaceable possession” of the 52 acres involved in this case. Since 1904, Camilla held title to the mineral estate in the 52 acres, but William and Rosia Moore claimed occupation and peaceable possession of that land since at least 1899.

Almost one century later, the Davises leased the 52 mineral acres in 1998 to Sun Operating Limited Partnership, who assigned its lease to Kerr-McGee. In 2001, the Gulleys leased the 52 mineral acres to Comstock Oil & Gas, Inc. Kerr-McGee and a neighboring lessee formed a pooled unit, which included the 52 mineral acres, and drilled a well on the pooled land. After the well was drilled, a title opinion revealed the Gulleys’ claim to the 52 mineral acres.

The Davises filed suit against the Gulleys for trespass to try title, to quiet title, for breach of contract, for unpaid shares of proceeds derived from the sale of oil and gas production, and for attorney’s fees. The Gulleys responded with a general denial and by asserting several affirmative defenses, including that their predecessors in interest — William and Rosia Moore— adversely possessed the 52 mineral acres.

The Davises filed a motion for summary judgment, asserting 58 traditional and no-evidence grounds. The Gulleys responded to the Davises’ motion and filed the 1909 deed as summary judgment evidence. The Davises objected to the deed. The trial court sustained the Davises’ objection to the 1909 deed.

The Gulleys filed an emergency motion for leave of court to supplement the summary judgment record with the affidavits of Norman Smith, John Ethan Collins, B.J. Collins, Edwin Smith, Doyle Odell Smith, and Betty J. Gulley, who testified to historical activities and operations by the Gulleys’ predecessors in interest. The Davises objected to the affidavits on multiple grounds. The trial court granted the Gulleys leave to file the affidavits, but sustained the Davises’ objections to the affidavits. The trial court granted summary judgment in favor of the Davises, awarding the Davises the 52 mineral acres in a final judgment. The Gulleys appealed to the Beaumont Court of Appeals, and the Texas supreme court transferred the case to this Court.

Exclusion of Summary-Judgment Evidence

In their first and second issues, the Gulleys contend the trial court erred by excluding the 1909 deed and the six affidavits.

A. 1909 Deed

In their first issue, the Gulleys contend the trial court erred by excluding the 1909 deed because it falls within an exception to the hearsay rule. The 1909 deed contains a recital that William and Rosia Moore “have occupied, claimed and been in peaceable possession of the 130 acre tract first above described, for more than 10 years prior to this date.”

Assuming the trial court erred by excluding the 1909 deed, any error is harmless because the trial court’s judgment does not turn on the evidence. See Benavides v. Cushman, Inc., 189 S.W.3d 875, 879 (Tex.App.-Houston [1st Dist.] 2006, no pet.) (citing City of Brownsville v. Alvarado, 897 S.W.2d 750, 753-54 (Tex.1995)) (stating evidentiary rulings do not cause reversible error unless judgment turns on excluded evidence). As discussed below, summary judgment was proper because the evidence shows, as a matter of law, William and Rosia Moore were not in exclusive possession of the 52-acre tract. The 1909 deed does not address this element of the Gulleys’ adverse possession claim. Neither the trial court’s decision nor this Court’s decision turns upon this evidence. See Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex.1985) (“The fact that the Gannons claimed the property does not satisfy their burden to tender conclusive evidence on each essential element of adverse possession in order to prevail as a matter of law.”). Therefore, the error, if any, is not reversible error. See Benavides, 189 S.W.3d at 879.

We overrule the Gulleys’ first issue.

B. Affidavits

In their second issue, the Gulleys assert the trial court erred by excluding the affidavits of Norman Smith, John Ethan Collins, B.J. Collins, Edwin Smith, Doyle Odell Smith, and Betty J. Gulley. Specifically, the Gulleys contend that the affidavits are exceptions to the hearsay rule and are admissible under Rule 803(19) as statements of reputation concerning personal or family history, under Rule 803(20) as statements of reputation concerning boundaries or general history, and under Rule 804(b)(3) as declarations about family history by unavailable witnesses. See Tex.R. Evid. 803(19), 803(20), 804(b)(3).

When an appellee objects to evidence on several independent grounds and, on appeal, the appellant complains of the exclusion of the evidence on only one of those grounds, the appellant waives any error by failing to challenge all possible grounds for the trial court’s ruling that sustained the objection. Trahan v. Lone Star Title Co. of El Paso, Inc., 247 S.W.3d 269, 284 (Tex.App.-El Paso 2007, pet. denied) (citing Cantu v. Horany, 195 S.W.3d 867, 871 (Tex.App.-Dallas 2006, no pet.)).

Here, in addition to objecting to the trial court that the affidavits are hearsay, the Davises objected to each affidavit on multiple other grounds. The Davises objected to all the affidavits based on relevance under Rule 402 and lack of personal knowledge of the witnesses under Rule 602. The specific basis for these objections is that each witness was born in 1915 or later, after the events in question occurred on the 52 acres. The Davises made additional specific objections to Norman Smith’s affidavit as follows:

1. “Otherwise inadmissible” under Rule 403.
2. Opinions concerning adverse possession are “conclusionary” and thus incompetent under Rule 601.
3. Inadmissible opinion by a lay witness under Rule 701 because no underlying facts to support opinion disclosed.
4. Statements concerning adverse possession and homestead are opinions on mixed question of law and fact and inadmissible under Rules 702 through 706.

The Davises made the following specific objections to the affidavits of John Ethan Collins and B.J. Collins:

1. “Otherwise inadmissible” under Rule 403.
2. Opinions concerning adverse possession are “conelusionary” and thus incompetent under Rule 601.
3. Statements concerning adverse possession and homestead are opinions on mixed question of law and fact and inadmissible under Rules 703 through 706.

The Davises made specific objections to the affidavit of Edwin Smith as follows:

1. “Otherwise inadmissible” under Rule 403.
2. Opinions concerning adverse possession are “conclusionary” and thus incompetent under Rule 601.
3. Inadmissible opinion by a lay witness under Rule 701 because no underlying facts to support opinion disclosed.
4. Statements concerning adverse possession and homestead are opinions on mixed question of law and fact and inadmissible under Rules 702 through 705.

The Davises made specific objections to the affidavit of of Doyle Odell Smith as follows:

1. “Otherwise inadmissible” under Rule 408.
2. Inadmissible opinion by a lay witness under Rule 701 because no underlying facts to support opinion disclosed.
3. Statements concerning adverse possession and homestead are opinions on mixed question of law and fact and inadmissible under Rules 703 through 706.

The Davises objected specifically to the affidavit of Betty J. Gulley by asserting that the affidavit contained inadmissible opinion by a lay witness under Rule 701 because no underlying facts to support the opinion were disclosed.

The trial court granted the Davises’ objections without specifying the grounds for excluding the affidavits. On appeal, the Gulleys only assert that the trial court erred because the affidavits were admissible under exceptions to the hearsay rule. The Gulleys do not challenge any other objection that could be the basis for the trial court’s ruling. Therefore, the Gulleys have waived any error in the exclusion of the affidavits on the unchallenged grounds. See Trahan, 247 S.W.3d at 284; Cantu, 195 S.W.3d at 871.

We overrule the Gulleys’ second issue.

Summary Judgment

In one of their grounds in their motion for summary judgment, the Davises assert that the evidence established that William and Rosia Moore held joint possession of the 52-acre tract with George Moore, George Davis’s tenant. Because joint possession is not exclusive possession, the Davises contend that William and Rosia Moore’s possession was not adverse as a matter of law.

A. Standard of Review

We review a trial court’s grant of summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). Summary judgment is proper only when the movant establishes that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c). In reviewing a summary judgment, we must indulge every reasonable inference in favor of the nonmovant, take all evidence favorable to the nonmovant as true, and resolve any doubts in favor of the nonmovant. Valence, 164 S.W.3d at 661. When, as here, a summary judgment does not specify the grounds on which it was granted, we will affirm the judgment if any one of the theories advanced in the motion is meritorious. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex.2004).

B. Law of Adverse Possession

The Gulleys claim title through adverse possession under the 10-year and 25-year limitations statutes. Tex. Civ. PRAC. & Rem.Code Ann. §§ 16.026(a), 16.027 (Vernon 2002). “‘Adverse possession’ means an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person.” Tex. Civ. Prac. & Rem. Code Ann. § 16.021(1) (Vernon 2002). Joint use of the property with the owner does not satisfy the statute because “possession must be of such character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant.” Tran v. Macha, 213 S.W.3d 913, 914 (Tex.2006) (quoting Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex.1990)) (emphasis in original); see also Rick v. Grubbs, 147 Tex. 267, 214 S.W.2d 925, 927 (1948) (stating requirements of adverse possession “are not satisfied if the occupancy is shared with the owner or his agents or tenants”); Martin v. McDonnold, 247 S.W.3d 224, 236 (Tex.App.-El Paso 2006, no pet.) (“Joint or common possession by the claimant and the owner prevents the claimant’s possession from the requisite quality of exclusiveness.”).

An owner who is in actual possession of a portion of his land is considered to have possession of all his land; this is referred to as “constructive possession.” See Coleman v. Waddell, 151 Tex. 337, 249 S.W.2d 912, 913 (1952). When an owner is in possession through his tenant, the owner’s constructive possession extends to the land “which their tenants h[o]ld under and for them.” Sneed v. Hamilton, 299 S.W.2d 769, 772-73 (Tex.Civ.App.-Beaumont 1957, no writ). When the owner is in constructive possession of his land, a person claiming adverse possession who is in joint possession with the owner is limited to claiming land actually enclosed. Coleman, 249 S.W.2d at 913; see Rick, 214 S.W.2d at 927; Stroud v. Temple Lumber Co., 284 S.W.2d 909, 913 (Tex.Civ.App.-Beaumont 1955, writ ref'd n.r.e.).

When adverse possession commences before a severance of the mineral estate, the adverse possession includes both the surface and mineral estate. Rio Bravo Oil Co. v. Staley Oil Co., 138 Tex. 198, 158 S.W.2d 293, 295 (1942); see also McDaniel v. Williams, 429 S.W.2d 640, 642 (Tex.Civ.App.-Tyler 1968, writ dism’d) (“It is a well established rule of law in this state that an adverse entry upon the surface of land extends downward and includes title to underlying minerals where at time of entry there has been no severance of mineral estate.”). Adverse possession commenced prior to limitations will extend to the mineral estate even if the titleholder severs the mineral estate before the limitations period has fully run. Rio Bravo Oil Co., 158 S.W.2d at 295. In contrast, possession of the surface estate that commences after a severance of the mineral estate is not sufficient to constitute adverse possession of the mineral estate. Natural Gas Pipeline Co. of Am. v. Pool, 124 S.W.3d 188, 193 (Tex.2003). Thus, in this case involving adverse possession of the mineral estate in the 52-acre tract, William and Rosia Moore’s adverse possession must have commenced before Camilla Davis severed the mineral estate by reserving it to herself in 1904. See id.; Rio Bravo Oil Co., 158 S.W.2d at 295; McDaniel, 429 S.W.2d at 642.

C. Analysis

Here, the issue is whether William and Rosia Moore acquired limitations title to the mineral estate of the 52-acre tract. In 1892, William and Rosia Moore began living on the 52 acres as husband and wife. At that time, and for at least 20 years preceding that time, George Moore, William’s father, was George Davis’s tenant on the land at issue in this appeal. In the 1879 deed, George Moore specifically stated he was George Davis’s tenant on the League; he was George Davis’s agent; and he would look after the League, protect the League from trespassers, and surrender possession of the League to George Davis on demand. Similarly, in 1889, the Prussia Harney lawsuit was filed and the judgment in that suit in 1898 stated George Moore was George Davis’s “tenant in possession” of the League. Furthermore, in response to requests for admissions, the Gulleys admitted George Moore and his wife resided on the League from “prior to 1879 until a point in time after November 1904.” See Methodist Hosps. of Dallas v. Mid-Century Ins. Co. of Tex., 195 S.W.3d 844, 846 (Tex.App.-Dallas 2006, no pet.) (stating responses to requests for admission are competent summary judgment evidence when incorporated into motion and used against party making admission). Because George Moore, the tenant of George Davis, held the entire League for George Davis, George Davis was in constructive possession of the League. See Coleman, 249 S.W.2d at 913; Sneed, 299 S.W.2d at 772-73. Therefore, from 1892 through 1904, William and Rosia Moore’s possession of the land within the League was joint possession with George Davis, the owner. See Coleman, 249 S.W.2d at 913; Rick, 214 S.W.2d at 927; Stroud, 284 S.W.2d at 913.

Because William and Rosia Moore’s possession of the lands within the League was joint possession with George Davis, their adverse possession claim is limited to lands actually enclosed. See Coleman, 249 S.W.2d at 913; Rick, 214 S.W.2d at 927; Stroud, 284 S.W.2d at 913. The record contains no summary judgment evidence showing the 52-acre tract was actually enclosed. In their brief to this Court, the only evidence the Gulleys identify to show the 52-acre tract was enclosed is in two of the affidavits that were excluded by the trial court. No evidence was admitted to show the 52-acre tract was actually enclosed. The Davises, therefore, are entitled to judgment as a matter of law on the grounds that William and Rosia Moore were in joint possession of the 52-acre tract with George Davis, who constructively possessed the entire League through his tenant George Moore. See Tran, 213 S.W.3d at 915; Coleman, 249 S.W.2d at 913; Rick, 214 S.W.2d at 927.

The Gulleys cite to the Texas supreme court’s opinion in Tex-Wis Co. v. Johnson, 534 S.W.2d 895 (Tex.1976). In Tex-Wis, the court upheld a jury finding in favor of Alexander based on Alexander’s long-time residency on the land and the absence of any evidence that any claim of ownership was asserted by the record owner, Tex-Wis, during that time. Id. at 898. Alexander’s land was foreclosed by Tex-Wis, but he remained on the land despite the foreclosure. Id. Although Alexander did not give Tex-Wis actual notice of his intent to adversely possess the land, the court held notice of his intent could be inferred from the circumstances. Id. The court observed that “under certain circumstances, notice may be inferred” to satisfy the requirement that a tenant notify the titleholder that he is repudiating his tenancy as a permissive, holdover tenant. Id. In describing the type of circumstances sufficient to constitute an inference of notice, the court observed that an inference of notice may be made “when the adverse occupancy and claim of title to the property is so long-continued, open, notorious, exclusive and inconsistent with the existence of title in orders.” Id. (emphasis added). The court held that an inference of notice of repudiation to the titleholder occurs when there is (1) long-continued possession under claim of ownership and (2) nonassertion of claim by the titleholder. Id. The court explained that nonassertion of claim by the titleholder means “the absence of any overt act of ownership on the part of the record owner which is inconsistent with notice of a repudiation.” Id. As an example of conduct found sufficient to show a claim by a titleholder, the court said payment of taxes shows an assertion of ownership by the titleholder. Id. Unlike Tex-Wis, which failed to assert any claim on the property during the time Alexander was on the land, here, George Davis did make an assertion of ownership. Like the act of paying taxes, George Davis asserted a claim on the land by leasing his land to George Moore, who held the entire League for him. As we note above, the Gulleys admitted that George Moore and his wife resided on the League from “prior to 1879 until a point in time after November 1904.” By leasing the land and having his lessee occupy the land, George Davis, the titleholder, asserted his claim on the land. Accordingly, the Gulleys have failed to establish the second element for constructive notice, which requires the nonas-sertion of a claim of ownership by the title holder. The holding in Tex-Wis, therefore, is consistent with our holding that, at most, William and Rosia Moore were in joint possession of the land with George Davis, who constructively possessed the land through George Moore.

Having determined the trial court properly granted summary judgment on the ground of joint possession, we affirm the summary judgment without addressing the alternate grounds. See Joe, 145 S.W.3d at 157. We overrule the Gulleys’ third issue.

Conclusion

We affirm the judgment of the trial court.

      . Linda Gerbens Adams, Linda Gerbens 1987 Trust, Julia H. Gerbens Jameson, Judy Ger-bens Benkendorfer, and Patsy Gerbens Wilder were also named as defendants. They have since settled with the Davises and are not party to this appeal.

      . No evidence conclusively proves William and Rosia Moore began living on the 52 acres in 1892. At oral argument, in response to a question from the panel, the Gulleys stated William and Rosia Moore's possession of the 52 acres began in 1892. The Gulleys also assert this in the brief they submitted to this Court. Several of the affidavits that the Gulleys submitted as summary judgment evidence state that William and Rosia Moore began living on the 52 acres at or near the time of their marriage. But these affidavits were ruled inadmissible by the trial court and we have upheld that ruling in our discussion of the second issue. In other portions of their brief and of the record, such as in response to interrogatories, the Gulleys asserted adverse possession began "prior to 1899,” citing the 1909 deed as evidence. Whether William and Rosia Moore began living on the League in 1892 or "before 1899” does not affect our analysis concerning joint possession because George Moore constructively possessed the land for the Davises since at least 1892.