Robert Cox v. Helena Chemical Company ( 2020 )

Opinion filed October 16, 2020
In The
Eleventh Court of Appeals
__________
No. 11-18-00215-CV
__________
ROBERT COX ET AL., Appellants
V.
HELENA CHEMICAL COMPANY, Appellee
On Appeal from the 32nd District Court
Mitchell County, Texas
Trial Court Cause No. 16643
OPINION
This appeal arises from a suit filed by Appellants1 against Helena Chemical
Company2 for damages allegedly caused to Appellants’ cotton crops by drift from
the aerial application of Sendero, an herbicide that contains clopyralid and
aminopyralid and is toxic to broadleaf plants such as cotton. Appellants asserted
1
Appellants are Robert Cox, Tanner Cox, Cox Farms, James Cox Trust, David Stubblefield, Brooks
Wallis, Russell Erwin, Jack Ainsworth, Loren Rees, Tyson Price, Rushell Farms, and Hoyle & Hoyle.
2
Although Appellants originally sued other defendants as well, Helena was the only remaining
defendant at the time of the final judgment.
claims against Helena for negligence, gross negligence, negligence per se, and
trespass. The trial court granted Helena’s motions for partial summary judgment on
Appellants’ claims for mental anguish, gross negligence, malicious conduct, and
punitive damages. The trial court later granted Helena’s motion to strike the
opinions of Appellants’ experts as to causation and Helena’s no-evidence motion for
summary judgment. The trial court rendered judgment that Appellants take nothing
on all of their claims against Helena. We affirm in part and reverse and remand in
part.
Appellants present three issues on appeal. Appellants contend that the trial
court erred (1) when it granted partial summary judgments related to trespass,
emotional distress, and punitive damages; (2) when it granted Helena’s motion to
strike expert witness evidence on causation; and (3) when it granted Helena’s motion
for a no-evidence summary judgment on the element of causation.
Before reaching the propriety of the summary judgment, we must first address
Appellants’ second issue, which requires us to determine whether the trial court
abused its discretion when it struck the opinions and testimony of six of Appellants’
experts. See Lujan v. Navistar, Inc., 555 S.W.3d 79, 84–85 (Tex. 2018) (citing
Starwood Mgmt., LLC v. Swaim, 530 S.W.3d 673, 678 (Tex. 2017)); see also E.I. du
Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995). A trial court
abuses its discretion if it acts without reference to any guiding rules or principles.
Robinson, 923 S.W.2d at 558; Downer v. Aquamarine Operators, Inc., 701 S.W.2d
238, 241–42 (Tex. 1985).
“A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if the
expert’s scientific, technical, or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in issue.” TEX. R. EVID. 702.
With regard to the admissibility of expert testimony, the Texas Supreme Court has
2
held that, in addition to showing that an expert witness is qualified and that the
expert’s testimony is relevant to the issues in the case, Rule 702 requires the
proponent to show that the expert’s testimony is based upon a reliable foundation.
Robinson, 923 S.W.2d at 556; see, e.g., Foust v. Estate of Walters, 21 S.W.3d 495,
504–05 (Tex. App.—San Antonio 2000, pet. denied) (upholding admission of expert
testimony in negligence suit against aerial applicator for damages allegedly caused
to cotton crops from herbicide drift). “Admission of expert testimony that does not
meet the reliability requirement is an abuse of discretion.” Gharda USA, Inc. v.
Control Sols., Inc., 464 S.W.3d 338, 347–48 (Tex. 2015) (quoting Cooper Tire &
Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex. 2006)). Courts generally
determine the reliability of an expert’s chosen methodology by applying the
Robinson factors. Id. at 348. The Robinson court explained:
There are many factors that a trial court may consider in making
the threshold determination of admissibility under Rule 702. These
factors include, but are not limited to:
(1) the extent to which the theory has been or can be tested;
(2) the extent to which the technique relies upon the subjective
interpretation of the expert;
(3) whether the theory has been subjected to peer review and/or
publication;
(4) the technique’s potential rate of error;
(5) whether the underlying theory or technique has been
generally accepted as valid by the relevant scientific community; and
(6) the non-judicial uses which have been made of the theory or
technique.
We emphasize that the factors mentioned above are non-
exclusive. Trial courts may consider other factors which are helpful to
determining the reliability of the scientific evidence. The factors a trial
court will find helpful in determining whether the underlying theories
and techniques of the proffered evidence are scientifically reliable will
differ with each particular case.
3
....
The trial court’s role is not to determine the truth or falsity of the
expert’s opinion. Rather, the trial court’s role is to make the initial
determination whether the expert’s opinion is relevant and whether the
methods and research upon which it is based are reliable. There is a
difference between the reliability of the underlying theory or technique
and the credibility of the witness who proposes to testify about it. . . .
Robinson, 923 S.W.2d at 557–58 (citations and footnote omitted).
The Robinson relevance and reliability requirements apply to all expert
testimony, but the Robinson factors cannot always be used in assessing an expert’s
reliability. Cooper Tire, 204 S.W.3d at 801. Nevertheless, “there must be some
basis for the opinion offered to show its reliability.” Id. (quoting Gammill v. Jack
Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex. 1998)).
Expert testimony has been held to be unreliable “if there is too great an
analytical gap between the data on which the expert relies and the opinion offered.”
Gharda USA, 464 S.W.3d at 349 (quoting Volkswagen of Am., Inc. v. Ramirez, 159
S.W.3d 897, 904–05 (Tex. 2004)). Whether an analytical gap exists is largely
determined by comparing the facts the expert relied on, the facts in the record, and
the expert’s ultimate opinion. Id. We do not determine if the expert’s opinions are
correct, but instead, we determine only whether the analysis used to reach the
opinions is reliable. Id. (citing Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629
(Tex. 2002)).
The Texas Supreme Court applied an analytical-gap analysis when it
addressed the reliability of the testimony of an accident reconstruction expert in TXI
Transportation Co. v. Hughes, 306 S.W.3d 230, 235 (Tex. 2010). The court noted
that the Robinson “methodology” factors are difficult to apply to accident
reconstruction testimony in vehicular accident cases and that it is appropriate “to
analyze whether the expert’s opinion actually fits the facts of the case.” TXI, 306
4
S.W.3d at 235 (citing Ramirez, 159 S.W.3d at 904–05). In doing so, courts
determine “whether there are any significant analytical gaps in the expert’s opinion
that undermine its reliability.” Id. An analytical gap arises when the expert
improperly applies otherwise sound principles and methodologies, the expert’s
opinion is based on incorrectly assumed facts, or the expert’s opinion is based on
tests or data that do not support the conclusions reached. Gharda USA, 464 S.W.3d
at 349.
In the case before us, Helena filed a Motion to Strike Plaintiffs’ Expert
Opinions on Causation. Helena asserted in its motion to strike that “many of
Plaintiffs’ experts are not qualified to make the specific opinions they seek to offer,
their opinions are not based on any reliable evidence or scientific principles, and
none of the experts rule out potential alternative causes of Plaintiffs’ alleged crop
damage.” The trial court granted Helena’s motion and struck “all causation opinions
or testimony offered by Ronald Halfmann, Daylon Royal, Tracey Carrillo, Paul
Rosenfeld, Ron Roberts and/or Paul Ward.”
Approximately one month before Helena filed its motion to strike, the parties
had entered into a Rule 11 agreement “regarding the opinions and deposition
testimony” of Appellants’ retained experts: Halfmann, Royal, Rosenfeld, Carrillo,
Roberts, and Ward. See TEX. R. CIV. P. 11. In the agreement, which was signed by
counsel for both Helena and Appellants and was attached as an exhibit to Helena’s
no-evidence motion for summary judgment and Helena’s motion to strike, the parties
agreed that the deposition testimony of Halfmann, Royal, Rosenfeld, Carrillo,
Roberts, and Ward was “admissible” with respect to each expert’s qualifications and
experience, the methodology employed to reach each expert’s opinions, the
scientific bases for those opinions, the scope and type of evidentiary bases for those
opinions, and the scope and extent of those opinions. The agreement indicates that
the parties were “not agreeing that the actual supporting factual evidence relied on
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by any expert . . . or the actual opinions reached by any expert” were relevant or
admissible.
Whether Appellants’ causation experts were justified in relying on the
“supporting factual evidence” is, in this case, an issue of fact. The record reflects
that, as stipulated by Helena in the Rule 11 agreement, the experts retained by
Appellants were well qualified and experienced in their fields of expertise:
Halfmann—agriculture, aerial application of chemicals, and drift and pesticide
investigations; Royal—aerial application of herbicides; Rosenfeld—chemistry and
herbicides; Carrillo—agriculture, plant pathology, herbicides, and drift; Roberts—
meteorology; and Ward—agriculture.
Roberts and Ward did not offer an expert opinion as to causation. In his expert
report, Roberts expressed an opinion about the weather conditions at the target
pastures from July 1 through July 4, 2015, based on the data from the Mesonet
stations on either side of the target pastures. Ward conducted germination testing
on soil samples taken from Appellants’ fields after they harvested their 2015 crops.
Ward preserved his records on a graph that included a series of grades assigned to
each sample at regular intervals after planting, the longitude and latitude of the field
from which the particular sample was gathered, and the identity of the farmer
associated with that field. Ward’s germination testing revealed that no germination
occurred in a significant number of the samples and that, in the vast majority of the
samples, “symptoms of Sendero damage appeared after[]” germination. As noted
by Helena in its motion to strike, “Ward unequivocally disclaimed any knowledge
or opinions regarding whether herbicide in fact drifted from the applications in
question to any of [Appellants’] fields.” Because Roberts and Ward did not offer an
expert opinion that Helena caused the damage to Appellants’ cotton, the trial court
erred in excluding their testimony.
6
Royal mainly addressed the applicable standards of care and the breach of
those standards by Helena and the pilots who applied the Sendero for Helena. In
one sentence in his report, Royal states: “Historical drift events reveal that Sendero
drifted to farmers’ fields.” Royal had personal experience as an applicator in a
historical drift event, but to the extent that the above sentence constitutes an expert
opinion that Helena’s aerial application of Sendero caused Appellants’ damages, that
opinion was inadmissible based on the analytical gap in Royal’s conclusion as to
causation in this case based on “[h]istorical drift events.” However, the crux of
Royal’s expert report related to the standards of care and the breach of those
standards by Helena and the pilots—an opinion that Royal was well-qualified to give
and that was based on his knowledge of crop dusting, on the relevant weather data,
and on the planes’ Sat-Loc records, among other factors. Thus, Royal’s testimony
should not have been excluded in its entirety but, rather, only to the extent that Royal
attempted to offer an opinion that Sendero drifted from Helena’s application site to
Appellants’ fields.
Rosenfeld opined largely as an expert on Sendero and its toxic and lasting
effects on cotton. Rosenfeld also touched on the issue of drift and indicated that
“Sendero drift from aerial application of pesticide damaged cotton.” Rosenfeld
relied on the results of the tests from the samples taken by Appellants, Helena, and
Cory Pence (a pesticide inspector and regional education specialist for the Texas
Department of Agriculture), all of which showed the presence of clopyralid.
Rosenfeld also relied upon the TDA report that was prepared by Pence, Appellants’
reports of damage to their cotton, and the related photographs and imagery taken of
such damage. He determined that Appellants’ reports were consistent with the
characteristics of aerial dispersion of Sendero.
Halfmann had almost forty years of experience in the profession of or the
regulation of the aerial application of chemicals for agriculture in Texas. For fifteen
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years, he was an operator and pilot that specialized in rangeland brush control on
large ranches in West Texas—the same type of application conducted by Helena on
the Spade Ranch. For twenty years, Halfmann was employed by the Texas
Department of Agriculture, where he co-authored the department’s Pesticide
Complaint Investigation Manual, trained inspectors and staff on the prevention of
spray drift, and provided label advisory language for the Environmental Protection
Agency’s “Spray Drift Task Force.” Halfmann also worked on the technical aspects
of advanced computer modeling for drift prevention programs and investigated
hundreds of drift events similar in cause or effect to those alleged in this case.
Halfmann indicated that drift modeling via computer simulation revealed the
extraordinary risk of applying Sendero in the weather conditions that existed at the
time of the aerial application in this case. Halfmann stated that computer programs
for drift modeling were not typically designed to consider the high wind speeds that
occurred during the aerial application in this case. Halfmann indicated that he had
worked with the EPA when it came out with its spray drift model; he explained that
the EPA’s spray drift model was designed to determine “the probability of a product
drifting,” not the distance that it would drift.
Carrillo—who has a doctorate degree in Environmental Plant Sciences,
Agronomy; a master’s degree in Entomology, Plant Pathology and Weed Science;
and a bachelor’s degree in Rangeland Management—has extensive professional
experience with herbicide applications. He has conducted research on cotton for
more than thirty years and is a certified crop advisor with education and training in
spray drift.
Halfmann and Carrillo offered extensive testimony and opinions related to
causation. Halfmann and Carrillo determined that the damage to Appellants’ cotton
crops resulted from a large-scale aerial application of clopyralid during early July.
During the first week of July, Helena aerially applied over 3,300 gallons (over twelve
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tons) of Sendero to target mesquite trees on more than 15,000 acres of the Spade
Ranch. The pilots made over 600 runs to apply the Sendero along several miles of
land that was situated generally on a west to east axis. Halfmann and Carrillo relied
on weather data, Sat-Loc flight records, lab tests showing the presence of clopyralid
in some of Appellants’ cotton plants, descriptions and hundreds of pictures of
Appellants’ damaged cotton plants, a map showing the locations of the application
sites and the affected fields, and a short video depicting the actual aerial application
of chemicals at the Spade Ranch in early July. Despite adverse weather conditions,
the pilots, at times, sprayed the herbicide while at least thirty feet above the ground.
To conclude that it was Helena’s aerial application that caused the damages,
Halfmann and Carrillo relied on Pence’s visual observations and investigation to
rule out the possibility that there was another large-scale aerial application of
clopyralid at the relevant time in the area of Appellants’ cotton fields.
While we agree with Helena that expert opinions as to causation are not
admissible if those opinions lack foundational data or are based on mere
assumptions, we do not agree that the opinions on causation that were provided by
Appellants’ experts lacked foundational data or were based on mere assumptions or
invalid assumptions. When an expert’s opinion is based on assumed facts that vary
materially from the actual, undisputed facts, the opinion is without probative value
and cannot support a verdict or judgment. Burroughs Wellcome Co. v. Crye, 907
S.W.2d 497, 499 (Tex. 1995). Appellants’ causation experts may have based their
opinions on some disputed facts, but they did not base their opinions on assumed
facts that varied from actual, undisputed facts. Although Halfmann, Carrillo, and
Rosenfeld could not specifically trace the purported drift of clopyralid from the
Spade Ranch to Appellants’ cotton fields, they provided a reliable scientific basis
for their opinions that Appellants’ cotton crops were damaged by a large-scale aerial
application of clopyralid to the south of Appellants’ fields. Relying on Pence’s
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investigation and observations that Helena’s aerial application of Sendero, which
was done in conditions that exacerbated drift, was the only such large-scale
application at the relevant time and place, they concluded that the damage to
Appellants’ cotton crops was caused by Helena. We see no analytical gap in such a
conclusion. We sustain Appellants’ second issue as to Appellants’ expert witnesses
with one exception: that exception being Royal’s attempt to offer an opinion that
Sendero drifted from Helena’s application site to Appellants’ fields.
In their third issue, Appellants assert that the trial court erred when it granted
Helena’s no-evidence motion for summary judgment. After an adequate time for
discovery, a party may move for summary judgment on the ground that there is no
evidence of one or more essential elements of a claim or defense on which an adverse
party would have the burden of proof at trial. TEX. R. CIV. P. 166a(i). We review a
no-evidence motion for summary judgment under the same legal sufficiency
standard as a directed verdict. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248
(Tex. 2013). Under this standard, the nonmovant has the burden to produce more
than a scintilla of evidence to support each challenged element of its claims. Id.
Evidence is no more than a scintilla if it is “so weak as to do no more than create a
mere surmise or suspicion” of a fact. King Ranch, Inc. v. Chapman, 118 S.W.3d
742, 751 (Tex. 2003) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.
1983)). Courts must consider the evidence in the light most favorable to the
nonmovant, indulging every reasonable inference in favor of the nonmovant and
resolving any doubts against the movant. Merriman, 407 S.W.3d at 248. “We
review the trial court’s grant of summary judgment de novo.” Lujan, 555 S.W.3d at
84 (citing Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.
2003)).
Here, Helena asserted in its motion that there was no evidence as to the
element of causation. Helena argued below and urges on appeal that, to prove
10
causation, Appellants must establish that Sendero, an herbicide that contains
clopyralid, physically traveled from the application sites to “each” of the 111 cotton
fields that Appellants claim were affected. According to Helena, the “causation
elements must be established—and summary judgment must be decided—
independently for each allegedly affected field.” We disagree with such a
contention. First, each field does not comprise a separate plaintiff. Second,
nonmovants need not marshal all their proof in response to a motion for summary
judgment; they “need only point out evidence that raises a fact issue on the
challenged elements.” Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008).
In response to Helena’s no-evidence motion, Appellants relied on the
affidavits of Halfmann and Carrillo and various exhibits. The summary judgment
evidence presented by Appellants indicated that their cotton crops in Mitchell
County were damaged by clopyralid or Sendero, that the application of clopyralid or
Sendero had to have occurred around the first week of July 2015, that the application
had to have been a widespread aerial event, that no other aerial applications were
observed during the applicable timeframe, and that Pence had driven the area around
the affected fields to look for any other potential applications of clopyralid or
Sendero but had found none. According to Appellants’ summary judgment
evidence, Pence traced the damage symptoms to the Spade Ranch, where over 3,300
gallons of Sendero had been applied aerially to mesquite trees on July 1, 2, 3, and 4
by two planes in conditions that were, at times, adverse to the aerial application of
chemicals. The adverse conditions included high winds blowing in the direction of
Appellants’ various cotton fields; high temperatures; the release of chemicals while
the plane was flying above the recommended height; and the application of an
inappropriate amount of chemicals, which would have created smaller droplets or
“driftable fines” more susceptible to drifting “miles and miles” away from the target
field.
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Helena has not provided any authority that would lead this court to conclude
that the experts’ opinions should have been struck or that a take-nothing summary
judgment was appropriate due to Appellants’ failure to present evidence specifically
related to each of the 111 cotton fields for which Appellants sought damages. A no-
evidence summary judgment is not appropriate if the nonmovant presents “some”
evidence that raises an issue of fact related to the challenged element. We believe
that, as set forth above, Appellants presented summary judgment evidence that
raised an issue of fact on the element of causation. Therefore, we sustain Appellants’
third issue.
In their first issue, Appellants contend that the trial court erred when it granted
partial summary judgments in favor of Helena on issues related to Appellants’ claims
for trespass, emotional distress damages, and punitive damages. The record reflects
that Helena filed combined traditional and no-evidence motions for partial summary
judgment related to these matters. In its motion for partial summary judgment on
Appellants’ claims for gross negligence, malicious conduct, and punitive damages,
Helena set forth at least thirty grounds upon which it moved for summary judgment.
In each of its nine motions for partial summary judgment on the individual
Appellants’ claims for mental anguish, Helena presented several grounds for
summary judgment. We will address only those summary judgment grounds
necessary to the disposition of this appeal. See TEX. R. APP. P. 47.1.
With respect to the no-evidence grounds, we will apply the well-recognized
standard for no-evidence summary judgments that we applied to Appellants’ third
issue. See Merriman, 407 S.W.3d at 248. With respect to the traditional summary
judgment grounds, we observe the following well-recognized standard. A party
moving for traditional summary judgment bears the burden of proving that there is
no genuine issue of material fact and that it is entitled to judgment as a matter of law.
TEX. R. CIV. P. 166a(c); Nassar v. Liberty Mut. Fire Ins. Co., 508 S.W.3d 254, 257
12
(Tex. 2017). For a defendant to be entitled to a traditional summary judgment, it
must either conclusively negate at least one essential element of the cause of action
being asserted or conclusively establish each element of an affirmative defense. Sci.
Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). Evidence is
conclusive only if reasonable people could not differ in their conclusions. City of
Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). If the movant initially
establishes a right to summary judgment on the issues expressly presented in the
motion, then the burden shifts to the nonmovant to present to the trial court any
issues or evidence that would preclude summary judgment. See City of Houston v.
Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979). In reviewing both
traditional and no-evidence summary judgments, we consider the evidence in the
light most favorable to the nonmovant, indulge every reasonable inference in favor
of the nonmovant, and resolve any doubts against the movant. Merriman, 407
S.W.3d at 248; City of Keller, 168 S.W.3d at 824.
When it granted Helena’s motions for partial summary judgment, the trial
court did not specify whether it did so on traditional or no-evidence grounds. When
a trial court does not specify the grounds upon which it grants summary judgment,
appellate courts will affirm if any of the theories are meritorious. Knott, 128 S.W.3d
at 216. Generally, we consider the no-evidence grounds first. Lightning Oil Co. v.
Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017). If the nonmovant
fails to overcome its no-evidence burden on any claim, we need not address the
traditional grounds related to that claim. Id.
With respect to Appellants’ request for punitive damages, Helena asserted in
its motion for summary judgment that there was no evidence of any gross negligence
or malice that could be attributed to Helena. Helena specifically asserted, among
other things, that there was no evidence of the following: that Helena authorized or
ratified any gross negligence or malicious conduct of the aerial applicators or of
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Helena’s employee Jeffery Fritz Gerhard, that Gerhard or the applicators were unfit,
that Helena was grossly negligent or acted maliciously when it hired Gerhard or the
applicators, and that Gerhard or any of the applicators was a vice principal of Helena.
Helena also asserted that the evidence established as a matter of law that Gerhard
was not the kind of employee who could authorize or ratify grossly negligent or
malicious conduct on behalf of Helena under Texas law and that neither the
applicators nor Gerhard was a vice principal of Helena.
The summary judgment evidence reflects that Helena, via Gerhard, hired
Lauderdale Aerial Spraying to perform an aerial application of herbicide on the
Spade Ranch in Mitchell County in July 2015. Helena, a member of the Texas Aerial
Applicators Association, had ground rigs for its application of chemicals but did not,
at that time, have aerial capabilities. Doug Ripley and Clyde Kornegay piloted the
two planes used for the aerial application at the Spade Ranch in 2015. Kornegay
and Ripley were not employees of Lauderdale.
Gerhard explained the process as follows:
The way it works on these jobs, any of the jobs that I do with
these end users, ranchers, is that I set it up. I meet with the grower. We
talk about what products are going to be used, what he’s trying to
control, and then we agree on how many acres. We get it mapped out.
And then I line it up with the applicator that I feel is best suited to do
the application.
And once we get to the job site, . . . we turn it over to the
applicator . . . .
Gerhard indicated that the ultimate responsibility for the mitigation of drift belongs
to either the applicator, which Gerhard said was “Lauderdale” in this case, or “the
pilots.”
Kornegay and Ripley agreed with Gerhard that the applicators have the
ultimate responsibility to prevent drift. According to Ripley, however, he,
Kornegay, and Gerhard made a “collective decision” at one point to not spray a
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particular area of the Spade Ranch because of the drift potential. The pilots and
Gerhard also had discussions about suspending the application at the Spade Ranch,
but the application was not suspended. Ripley indicated that Gerhard and the pilots
“worked as a team” but that Gerhard was “in charge” and had the “power to say
stop.” Furthermore, Gerhard monitored the weather, informed the pilots of the wind
conditions, monitored the mixing of the chemicals, and watched the pilots spray.
Gerhard admitted that he used his handheld Kestrel 3000, a wind meter, while at the
Spade Ranch during the July 2015 aerial application of Sendero. Helena supplied
the chemicals used in the aerial application, delivered those chemicals to the Spade
Ranch, informed Lauderdale of the “window” of time in which the application
needed to occur (taking into account tree growth, ground temperature, and weather
conditions), and told Lauderdale at what rate and volume to apply the Sendero.
Gerhard and the pilots knew the winds were out of the south and knew that
cotton crops were located north of the Spade Ranch. Gerhard was familiar with
Sendero and its warning label.
The purpose of punitive damages is to protect society by punishing the
offender; the purpose is not to compensate an injured party. Hammerly Oaks, Inc. v.
Edwards, 958 S.W.2d 387, 391 (Tex. 1997). Consequently, punitive damages are
available only if the harm suffered by the claimant resulted from fraud, malice, or
gross negligence. TEX. CIV. PRAC. & REM. CODE ANN. § 41.003(a) (West 2015); see
also id. § 41.001(5), (6), (7). Because Appellants asserted a claim for trespass as
well as gross negligence, we note that, to recover punitive damages for the tort of
trespass, the trespass must have been committed maliciously. Wilen v. Falkenstein,
191 S.W.3d 791, 800 (Tex. App.—Fort Worth 2006, pet. denied). “Malice” is
defined as “a specific intent by the defendant to cause substantial injury or harm to
the claimant.” CIV. PRAC. & REM. § 41.001(7).
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A corporation is liable in punitive damages for malice or gross negligence
only if the corporation itself committed the malicious or grossly negligent act. Qwest
Int’l Commc’ns, Inc. v. AT & T Corp., 167 S.W.3d 324, 326 (Tex. 2005); Mobil Oil
Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998). The Texas Supreme Court has
developed tests to distinguish between acts that are solely attributable to agents or
employees and acts that are directly attributable to the corporation. Ellender, 968
S.W.2d at 921; Hammerly Oaks, 958 S.W.2d at 391. A corporation is liable for
punitive damages if it authorizes or ratifies an agent’s malice or gross negligence, if
it maliciously or grossly negligently hires an unfit agent, or if the acts of malice or
gross negligence were committed by a vice principal of the corporation. Qwest, 167
S.W.3d at 326; Ellender, 968 S.W.2d at 921–22; see Hammerly Oaks, 958 S.W.2d
at 389. The term “vice principal” encompasses the following: “(a) corporate
officers; (b) those who have authority to employ, direct, and discharge servants of
the master; (c) those engaged in the performance of nondelegable or absolute duties
of the master; and (d) those to whom the master has confided the management of the
whole or a department or a division of the business.” Ellender, 968 S.W.2d at 922
(citing Hammerly Oaks, 958 S.W.2d at 391). To determine whether acts are directly
attributable to the corporation, courts do not simply judge individual elements or
facts but, rather, should review all the surrounding facts and circumstances to
determine whether the corporation itself acted with malice or gross negligence. See
id. (citing McPhearson v. Sullivan, 463 S.W.2d 174, 176 (Tex. 1971)).
The summary judgment evidence reflects that Gerhard averred that he was
employed by Helena in “a sales role” and called himself a “range and pasture
specialist.” Gerhard and the vice president of Helena’s Southern Business Unit both
averred that Gerhard had never been a corporate officer of Helena; had never had
the authority to hire or fire Helena employees; had never had responsibility for or
control over Helena’s safety rules, equipment, or workplace conditions; and had
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never held a management position for Helena or for any department or division
within Helena. Although Appellants claim that Gerhard was a “manager” and that
Helena ratified Gerhard’s actions, they presented no summary judgment evidence
that would support these conclusory statements. Appellants failed to present any
summary judgment that Gerhard was a vice principal of Helena, that Helena acted
with malice or gross negligence in the hiring of an unfit agent, or that Helena
authorized or ratified any malice or gross negligence that may have been committed
by Gerhard, Lauderdale, or the pilots. Therefore, we hold that the trial court properly
granted Helena’s motion for summary judgment on the issue of punitive damages.
Helena also moved for partial summary judgment on Appellants’ claims for
mental anguish. Helena asserted in its motions for partial summary judgment as to
mental anguish that Appellants had no evidence of malevolence, ill will, or animus
directed at Appellants as required to recover for mental anguish associated with
Appellants’ claims for gross negligence. Helena also asserted in its motions for
partial summary judgment that Appellants “cannot establish” that any trespass onto
their property was “deliberate and willful” as required to recover for mental anguish
associated with Appellants’ claims for trespass.
In Texas, there are only a few situations in which a claimant who was not
physically injured may recover for his mental anguish. Motor Express, Inc. v.
Rodriguez, 925 S.W.2d 638, 639 (Tex. 1996). Mental anguish damages cannot be
awarded in a negligence case brought for damage to property unless the negligence
was gross in nature and involved some ill will, animus, or intention to harm the
claimant personally. City of Tyler v. Likes, 962 S.W.2d 489, 496 (Tex. 1997);
MBR & Assocs., Inc. v. Lile, No. 02-11-00431-CV, 2012 WL 4661665, at *8 (Tex.
App.—Fort Worth Oct. 4, 2012, pet. denied) (mem. op.); Petco Animal Supplies,
Inc. v. Schuster, 144 S.W.3d 554, 561–62 (Tex. App.—Austin 2004, no pet.);
Seminole Pipeline Co. v. Broad Leaf Partners, Inc., 979 S.W.2d 730, 753–57 (Tex.
17
App.—Houston [14th Dist.] 1998, no pet.) (applying principle in gross negligence
case); accord Strickland v. Medlen, 397 S.W.3d 184, 190 (Tex. 2013) (stating that
Likes bars personal-injury-type damages such as mental anguish in a case alleging
negligent property damage). The rationale for this rule is consistent with the general
principle that emotional distress is not usually recoverable as an element of property
damages unless an improper motive is involved. MBR & Assocs., 2012 WL
4661665, at *8; Seminole Pipeline, 979 S.W.2d at 757.
Although Appellants presented some summary judgment evidence that may
have shown that Helena (via Gerhard and perhaps via Lauderdale and the pilots) was
grossly negligent in the aerial application of Sendero and that Appellants
experienced mental anguish as a result of the damage to their cotton crops,
Appellants presented no summary judgment evidence to suggest that Helena’s,
Gerhard’s, Lauderdale’s, or the pilots’ actions were motivated by animus, hostility,
malevolence, or ill will. “Without this additional element, the presence of gross
negligence alone is not sufficient to support an award for mental anguish arising
solely from damage to property.” Seminole Pipeline, 979 S.W.2d at 757; see also
Woodlands Land Dev. Co. v. Jenkins, 48 S.W.3d 415, 429–30 (Tex. App.—
Beaumont 2001, no pet.). Because Appellants failed to present any summary
judgment evidence of animus, hostility, malevolence, or ill will, the trial court did
not err when it granted Helena’s motions for partial summary judgment as to mental
anguish associated with Appellants’ claims for negligence and gross negligence.
Similarly, mental anguish damages cannot be awarded for a trespass unless
the trespass was “deliberate and willful,” thereby limiting the potential for excessive
liability. Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909, 922
(Tex. 2013); see also Lakeside Village Homeowners Ass’n v. Belanger, 545 S.W.3d
15, 37 (Tex. App.—El Paso 2017, pet. denied). An unauthorized entry onto the land
of another is a trespass, and it is a willful trespass if it was intended and deliberately
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done. Ripy v. Less, 118 S.W. 1084, 1085 (Tex. Civ. App.—Texarkana 1909, no
writ).
Although Appellants presented some summary judgment evidence that
Helena, via Gerhard and the pilots, were aware of the dangers of Sendero drift and
of the potential for Sendero to drift in adverse conditions, Appellants failed to
present any evidence that Helena, Gerhard, Lauderdale, or the pilots willfully and
deliberately caused Sendero to drift onto Appellants’ properties. Therefore, the trial
court did not err when it granted Helena’s motions for partial summary judgment as
to mental anguish associated with Appellants’ claims for trespass.
We overrule Appellants’ first issue.
We reverse the judgment of the trial court insofar as it rendered a take-nothing
judgment against Appellants; however, we affirm the judgment of the trial court with
respect to Appellants’ claims for mental anguish and punitive damages. We remand
the cause to the trial court for further proceedings not inconsistent with this court’s
opinion.
JIM R. WRIGHT
SENIOR CHIEF JUSTICE
October 16, 2020
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.3
Willson, J., not participating.
3
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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