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B-Line Filter & Supply Company v. Cagiano
October 18, 2001
Unpublished Opinion

B-Line Filter & Supply Company v. Cagiano

Court of Appeals of Texas, El Paso.



Joseph CAGIANO, Appellee.

No. 08-99-00468-CV.


Oct. 18, 2001.

Appeal from 70th District Court of Ector County, Texas, (TC# A-101,222).

Before CHEW, JJ.



*1 B-Line Filter & Supply Company, a nonsubscriber to the workers’ compensation system, appeals a judgment finding it had negligently caused injury to its employee, Joseph Cagiano, and awarding him $184,138.99. We affirm.


Joseph Cagiano worked for B-Line Filter & Supply Company (B-Line), as a lube technician. On the morning of August 15, 1995, Cagiano was asked to dispose of crushed oil filters, a task he had never performed before. These were used filters that were crushed into bricks and shipped for recycling. The compressed “bricks” of filters weighed five to ten pounds and were dumped into 55 gallon drums, each weighing up to 700 pounds when filled. According to Cagiano, no one informed him how to empty the barrels full of oil filters into the recycling bin. All he was told to do was “empty the barrels” and he was not told to empty the barrels one crushed filter at a time. Cagiano, along with two coworkers, proceeded to lift a 55 gallon drum up in order to dump its contents into the recycling bin. Cagiano testified that at this point he felt a strain in his back. Cagiano and his coworkers picked up a second barrel and dumped its contents into the recycling bin whereupon Cagiano said the pain in his back became worse. At the time Cagiano allegedly felt this strain, he made no mention of it to his coworkers, nor did he inform his supervisors.

Two months after the injury, Cagiano told his supervisor, Craig Freedman, he was injured and Freedman arranged for Cagiano to see a doctor. Dr. Barnard prescribed anti-inflammatory medication for Cagiano who claimed it had no effect. For eleven months following the injury, Cagiano missed no work except for the day he saw Dr. Barnard. On July 22, Cagiano missed work because the day before, a Sunday, he had played volleyball for several hours and that night he was in pain. On the following Monday, Cagiano went to see Dr. Islam, who performed an MRI on Cagiano’s back. Dr. Islam diagnosed Cagiano as having a herniated disc at the L5-S1 level of his back.

At trial, B-Line presented testimony that instructions were given on how to unload the barrels full of filters, specifically, that the filters should be unloaded one at a time. Cagiano did not present an expert witness to testify as to the cause of his injury. The jury returned a verdict finding B Line’s negligence had proximately caused Cagiano’s injury, and awarded him damages. The trial court entered judgment in accordance with the verdict.

Causation Evidence

In its Points of Error One and Two, B-Line urges that there was no evidence that B-Line’s acts or omissions proximately caused Cagiano’s injuries and there was no expert testimony linking the barrel-lifting incident to Cagiano’s injuries. Although Cagiano did not present expert testimony, we nonetheless conclude there was more than a scintilla of evidence establishing causation. The standard of review for legal sufficiency of the evidence requires us to consider only the evidence and inferences that tend to support the jury’s verdict and disregard all evidence and inferences to the contrary.1 We then determine if more than a scintilla of probative evidence supports the jury’s finding.2 If reasonable minds cannot differ from the conclusion that the evidence offered to support the existence of a vital fact lacks probative force, the evidence is legally insufficient.3

*2 Expert testimony is only one of several ways to prove proximate cause. A jury may find the required causal nexus between the event sued upon and the plaintiff’s injuries when: (1) general experience and common sense will enable a layperson fairly to determine the causal nexus; (2) expert testimony establishes a traceable chain of causation from the injuries back to the event; or (3) a probable causal nexus is shown by the expert testimony.4

This does not mean, however, that a court is limited to only one of these categories to the exclusion of the others in evaluating the sufficiency of the evidence.5 Cagiano did not present expert medical testimony to prove the proximate cause of his injury, but that will not preclude a finding of proximate cause if his injury is of the type from which the general experience and common sense of a layperson would be sufficient to determine the casual nexus between the event and the injury. “In such cases, lay testimony can provide both legally and factually sufficient evidence to prove the causal relationship.”6 For example, in Blankenship v. Mirick, plaintiff Mirick was injured in a car accident when her knees were forced into the dashboard of her car.7 Mirick experienced severe pain in her knees for which she was treated, but the pain persisted and worsened.8 At trial, Mirick testified that before the accident, she had experienced no pain in her knees, but after the accident, she experienced pain that progressed over time.9 Almost a year after her accident, Mirick was diagnosed with dislocated knee caps.10 The court held that Mrs. Mirick’s testimony constituted more than a scintilla of evidence of causation between the collision and her injury.11 Thus, her testimony was legally sufficient to support the damages awarded to her by the jury .12

Similarly, in Morgan v. Compugraphic Corp.,13 plaintiff Morgan testified that she had always been in good health until she returned from vacation and found a typesetting machine situated approximately two inches from her face.14 Defendant admitted that this machine was leaking chemical fumes.15 Soon after Morgan came back to work she began to experience blurred vision, headaches, stomach problems, swelling of the lips, eyes, and nasal passages.16 She began experiencing problems with her circulatory, digestive, and nervous systems.17 The issue was whether or not Morgan’s sole testimony provided some evidence that her alleged injuries were caused by the typesetting machine leaking chemicals.18 The Court held that Morgan’s testimony established a sequence of events that would allow a fact finder to infer, without the aid of expert testimony, that the typesetting machine leaking chemical fumes caused Morgan’s injury.19

Here, Cagiano testified that the only prior injury he had ever suffered was a shoulder injury from which he made a full recovery, and he had never before suffered a back injury. Cagiano testified that when he lifted up a barrel at work, he felt a strain on his back that day.”

*3 Cagiano’s testimony that he had never had a back injury before and that when he lifted the barrel he felt a strain which steadily progressed is, as in Morgan and Blankenship, some evidence of the causation of his injury. Furthermore, this testimony combined with the medical records that indicate he was injured at work, establish a sequence of events that would allow a fact finder to infer, without the aid of expert testimony, that Cagiano’s back injury was caused by the barrel-lifting incident. This evidence is more that a mere scintilla of evidence to support the jury’s finding that lifting the barrel at work was the cause of Cagiano’s injury. Points of Error One and Two are overruled.

Alternative Safe Method

In its third point of error, B-Line urges that it conclusively proved that it provided Cagiano with a safe method by which to remove the filters from the barrels, together with the equipment and tools with which to do so, and that he is not entitled to recover because he chose to use a faster, unsafe method. Although B-Line did present evidence to this effect, it was controverted by Cagiano, who testified that no one informed him how to empty the barrels full of oil filters into the recycling bin. All he was told to do was “empty the barrels” and he was not told to empty the barrels one crushed filter at a time. Thus, a fact question existed as to whether he was properly instructed in a safe method of performing the work. The issue was properly left to the jury to resolve. Point of Error Three is overruled.

Sole Proximate Cause Instruction

In its fourth point of error, B-Line contends it was entitled to a sole proximate cause instruction, and the trial court erred in refusing it. We disagree. The standard for review for error in the jury charge is whether the trial court abused its discretion.20

Failure to submit a question shall not be deemed ground for reversal of a judgment, unless its submission, in substantially correct wording, has been requested in writing.21 “Substantially correct” means a definition that is in substance and in the main correct, and that is not affirmatively incorrect.22 B-Line requested an instruction to the jury which read:

There may be more than one proximate cause to an event, but if an act or admission of any person other than B-Line Filter & Supply Company was the ‘sole proximate cause’ of an occurrence, then no act or admission of any other person could have been a proximate cause. (Emphasis added).

This request was not substantially correct. A correct instruction on sole proximate cause in a nonsubscriber case is:

There may be more than one proximate cause of an event, but there can be only one sole proximate cause. If an act or omission of any person was the sole proximate cause of an occurrence, then no act or omission of any other person could have been a proximate cause.23

“Admission” and “omission” mean two very different things, and the instruction requested by B-Line was therefore affirmatively incorrect. The trial court did not abuse its discretion in refusing this instruction as submitted. Point of Error Four is overruled.

Instruction on Course and Scope of Employment

*4 In its fifth point of error, B-Line urges that the trial court erred in refusing to instruct the jury that “an ‘employee’ is acting in the scope of his employment if he is acting in the furtherance of the business of his employer,” and an accompanying jury question “[d]o you find from a preponderance of the evidence that Plaintiff sustained an injury on or about August 15, 1995, while in the course and scope of his employment with Defendant.” We disagree. As stated above, the standard for review for error in the jury charge is whether the trial court abused its discretion.24

In support of its claim that course and scope of employment should have been submitted to the jury, B-Line relies on two cases: Yeldell v. Holiday Hills Retirement & Nursing Center,25 and Harry v. University of Texas System.26 The Harry case involved a suit under the workers’ compensation system, not a nonsubscriber case as we have here.27 It is therefore inapposite as to the question of whether course and scope should be submitted in a nonsubscriber case. The Yeldell case, on the other hand, involved a nonsubscriber suit in which a nurse spilled hot coffee on herself. The accident occurred when Yeldell was hanging up the telephone after calling her daughter, and the cord became entangled in the coffee urn.28 The case is analyzed as one under the workers’ compensation act, however, without acknowledgment that the issues might be different under a nonsubscriber negligence case than one involving a subscribing employer.29

The issues in a nonsubscriber negligence case do not include course and scope of employment, as would be the case in a suit involving workers’ compensation insurance. Here, the jury was asked one broad form liability question:

On or about August 15, 1995, did the negligence, if any, of B-LINE FILTER & SUPPLY COMPANY, proximately cause the injury in question, if any?

There was no evidence that if Cagiano was injured on August 15, 1995, he was injured in any other way than lifting barrels full of crushed oil filters. This case is distinguishable from Yeldell because there, it was the employer’s position that the nurse was not in the course and scope of her employment because she was making a personal telephone call when injured.30 There was no such controversy here: either the jury could find that Cagiano had been injured in the manner he contended, on August 15, or they could find that he was injured while playing volleyball some months later, as B-Line asserted. Liability here did not require a specific finding of course and scope of employment. Any error in failing to submit this question could not have affected the outcome under the evidence as presented here. Point of Error Five is overruled.

Juror Misconduct

The standard of review for failure to grant a new trial based on jury misconduct is abuse of discretion.31

Juror failed to reveal prior relationship with defense attorneys

*5 In its sixth point of error, B-Line urges that the trial court should have granted a new trial because a juror gave false answers to material questions during voir dire examination. Specifically, it urges that Juror Brenda Kyer failed to respond affirmatively to questions about whether anyone on the jury panel knew defense attorney Wade Hudman, his legal assistant Pam Locklar, or anyone in the law firm Todd, Barron & Thomason.

To obtain a new trial for jury misconduct, the movant must establish (1) that the misconduct occurred, (2) that it was material, and (3) probably caused injury.32 These requirements apply to misconduct consisting of erroneous or incorrect answers given by a juror during voir dire examination.33 B-Line had the burden of conclusively establishing that Juror Kyer committed misconduct.34 A panel member’s failure to disclose information about which she had no knowledge or had forgotten at the time of voir dire does not constitute concealment.35

Here, B-Line’s motion for new trial alleged that juror Brenda Kyer did not respond to a question as to whether any panel member had previously had contacts or dealing with B Line’s attorneys, and specifically with attorney Wade Hudman or his legal assistant Pam Locklar. Affidavits from Hudman and Locklar state that Kyer had dealings with the law firm, and with Hudman and Locklar, some years prior when Hudman represented a creditor of Kyer’s husband, and that Locklar had spoken to Kyer at least five times in an effort to collect their client’s judgment. In response, Cagiano filed Kyer’s affidavit, which stated:

During jury selection, Mr. Moore asked if any prospective jurors know or had contact with any of Defendant’s attorneys, Wade Hudman, William E. Berry, Jr., or Pamela Locklar (legal assistant), or any of the other attorneys of Todd, Barron & Thomason, P.C.

I failed to respond to that question simply because I did not recall talking with Mr. Wade Hudman, William E. Berry, Jr., or Pamela Locklar (legal assistant), or any of the other lawyers of Todd, Barron & Thomason, P.C. In June of 1996, Jim Kyer d/b/a Speed Specialists filed Bankruptcy. ESP Manufacturing, Inc. was one of many creditors the witness came into contact with. I spoke with many, many creditors and their legal representatives. At no time was I aware that Mr. Wade Hudman represented ESP Manufacturing, Inc. There were many lawsuits and they were handled on a case by case basis. When the account was settled, all checks were made out to ESP Manufacturing, Inc. I do not remember making any checks out to the Law Firm of Todd, Barron & Thomason, P.C. I simply do not remember.

This evidence does not demonstrate that Kyer was untruthful at voir dire. Rather, it shows only that she did not remember any dealings with Hudman, Locklar, or their law firm. This is lent further credibility because neither Hudman nor Locklar remembered Kyer either. Apparently, Kyer still did not remember any dealings with the law firm at the time she signed her affidavit. That Hudman and Locklar may have belatedly recalled their dealings does not render Kyer’s voir dire answer incorrect. Point of Error Six is overruled.

Foreperson not individual summoned

*6 In its seventh point of error, B-Line contends that Jimmie Robert Stark, who ultimately served as foreperson of the jury, was disqualified from serving on the jury in this case. This contention is based upon counsel’s affidavit in support of new trial, which asserted:

The jury summons record from the Ector County District Clerk’s Office identifies the individuals summoned for jury duty for the above described trial, specifically including one Jimmie Robert Stark, born June 18, 1979. Jimmie Robert Stark, born June 18, 1979, failed to appear for jury duty in the above cause.

A Jimmie Robert Stark, age forty-four (44), appeared at the Ector County Courthouse to serve on the venire panel of Cause No. A 101,222. The older Jimmie Robert Stark was selected to serve on the jury for Cause No. A 101,222, and was further elected to serve as the Jury Foreman during jury deliberations. Jury Foreman Jimmie Robert Stark then proceeded to wrongfully assert his influence over the jury, which resulted in a final jury decision of ten (10) to two (2) in favor of JOSEPH CAGIANO....


If I had known that a person (older Jimmie Robert Stark) was on the venire panel who had not in fact been summoned as a venire panel member for Cause No. A-101,222, I would have moved to strike jury foreman Jimmie Robert Stark for cause, and if jury foreman Jimmie Robert Stark had not been stricken for cause, I would have used one of Defendant’s six (6) peremptory strikes to strike jury foreman Jimmie Robert Stark.

All individuals are competent to sit as petit jurors unless disqualified by statute.36 B-Line does not allege that Stark suffered any disqualification listed in the Government Code; rather, it claims only that because the county clerk intended to call Stark the son, Stark the father could not qualify as a juror because the Government Code requires that “[o]n the day that jurors appear for jury service ... the judge ... shall select from the names on the jury lists a sufficient number of qualified jurors to serve on the jury panel.”37

Although we have found no Texas case addressing this precise situation, we note that even in cases where a juror is disqualified under the statute, error can be waived by the complaining party’s failure to timely raise the issue in the trial court.38 Here, B-Line did raise the issue in its motion for new trial, but it cannot point to any statutory qualification which Juror Stark, Sr. lacked. Neither does it point to any harm caused by Mr. Stark’s service on the jury, nor does it explain why it could not have discovered the error earlier if it had exercised due diligence. We simply see no cause for reversing the case on the grounds alleged.

B-Line’s reliance on Palmer Well Services v. Mack Trucks39 is misplaced. There, a a clearly disqualified juror was one of ten who concurred in a take-nothing judgment against Palmer.40 The trial court had queried the panel on their qualifications, but the juror in question, who was under felony indictment, failed to respond.41 The Supreme Court held that Palmer could not have discovered the disqualification until after the verdict was rendered, and the failure to discover the disqualification earlier was not due to a lack of diligence.42 Finally, the court held that the verdict could not have been rendered without ten jurors in agreement, one of whom was the disqualified juror, so Palmer had suffered injury as a matter of law .43 Here, there is no showing that Stark was disqualified at all; there is only the allegation that he was not the person called to serve by the clerk. Moreover, B Line has not pointed to any harm that occurred, save a global allegation that it would have struck Mr. Stark if it knew the juror “had not in fact been summoned as a venire panel member....”

*7 Where a citizen of the county, meeting all statutory requirements to serve as a petit juror serves, we simply see no harm that the district clerk might have intended to call another family member with the same, or very similar, name. B-Line makes no allegation that the mix-up was anything but an honest mistake, and the trial court did not abuse its discretion in refusing to grant a new trial. Point of Error Seven is overruled.

Evidence of Damages

Finally, in Point of Error Eight, B-Line urges that there was no evidence or pleadings to support the jury’s damage awards for physical pain, mental anguish, physical impairment, medical care, or loss of earning capacity. We review no evidence challenges under the standard recited for Points of Error One and Two.

Medical care

The jury awarded Cagiano $30,000 for medical care. B-Line complains that Cagiano did not plead or prove damages for future medical care. This is true, and B-Line’s counsel objected to any submission of future medical care damages to the jury on the ground that “Plaintiff did not plead, nor request, future medical costs.” Any amounts awarded which cannot be accounted for as having been sustained in the past, therefore, cannot survive this challenge.

Evidence on the cost of past medical care included: charges of Dr. Life Barnard, $70.00; charges of Scott Chiropractic Clinic, $2,026.00; charges of West Texas Imaging Center, $1,065.00; charges of SDI Systems Inc. (Dr. Kenneth Ratajczak) $425.00; charges of Dr. Ronald Manicom, $150.00; charges of Odessa Rehabilitation Center $262.00; charges of Dr. Robert Henderson, $406.00; charges of RHD Memorial Medical Hospital, $2,910.15; charges of Dr. Phillip R. Zeeck, $9,972.00; charges of Medical Center Hospital $12,273.93; charges of Evans Pharmacy, $40.87. This evidence was admitted in the form of medical affidavits, which included testimony that the amounts charged were reasonable and necessary. The affidavits were admitted without objection. The total of these amounts is $29,600.95. Moreover, there was evidence that Cagiano traveled to Dallas for some of his medical care, that he took over-the-counter pain medications, which the jury could reasonably find were necessary to his medical care. The evidence is legally sufficient on this element of damage.

Physical pain and mental anguish

The jury awarded Cagiano $40,000 for physical pain and mental anguish. Evidence of physical pain in the record includes Cagiano’s own testimony that after his back was injured, he started putting his tools where he could reach them without bending down, that his wife would rub his back and he would take hot baths morning and night, he would do stretching exercises, he had bouts of pain in the weeks before the volleyball game which were just as bad, his wife had to help him with his shoes and socks, it was humiliating for him to be helped that way, Dr. Barnard told him he had a desiccated lumbar discogram done in Dallas, which at L5, “I like to come off the table. So he knew the disc was bad and needed to come out.” Dr. Henderson recommended surgery. When he finally could not stand it anymore, he went to see Dr. Zeeck, a local doctor, for surgery. Zeeck performed a post inter-body fusion. During the year before that surgery, his wife took care of him. She came home for lunch, she would cook and clean up. She would clean when she was not at work. She took care of every part of their life. At the time of trial, lifting as little as 25 pounds causes him pain; he cannot stay in one position for long periods for driving, and other regular activities. He cannot play sports or have an active social life as he used to. He sleeps with pillows and towels to relieve his back pain.

*8 Vanessa Cagiano, his wife, testified that Joe Cagiano began complaining about his back after August 15. His problems would vary; sometimes he could not get up and sometimes he would have a good day, but he would always go to work.

Mental anguish has been defined as a relatively high degree of mental pain and distress; it is more than mere disappointment, anger, resentment, or embarrassment, although it may include all of these, and it includes mental sensation of pain resulting from such painful emotions as grief, severe disappointment, indignation, wounded pride, shame, despair, or public humiliation.44 The Supreme Court has held that mental anguish damages cannot be awarded without either direct evidence of the nature, duration, or severity of plaintiff’s anguish, thus establishing a substantial disruption in the plaintiff’s daily routine, or other evidence of a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger.45 For example, a mental anguish award may be supported by evidence that negative emotions have made it difficult for a plaintiff to eat, sleep, work, socially interact, or carry on other activities which, until the time of injury, could be accomplished on a day to day basis without difficulty.46

Cagiano testified that it was humiliating for him to be helped that way. He lost his house because he could not work, which left his family homeless. He moved in with his cousin, where he and his family had one room. He had to move from his cousin’s house and into his mother-in-law’s trailer. Cagiano and his family received help from the Open Door Church. They gave him money to help pay for his car and bills. His creditors-Dillard’s, Beall’s, Visa, a signature loan and a bank loan, were all calling him for payments. He still owes those bills. He has not been able to pay the doctors.

His wife testified that he was depressed and in a bad mood most of the time after August 15. He had difficulty accepting the injury. He took Tylenol every morning when he went to work. They had to sell almost everything they owned. There is more than a scintilla of evidence to support this element of the damage award.

Physical impairment

B-Line complains there is no evidence to support an award for past or future physical impairment, for which the jury awarded Cagiano $55,000. After his surgery, Cagiano testified he lost a lot of flexibility. He still has trouble putting on his shoes, stooping, squatting, bending, lifting. At the time of trial, lifting as little as 25 pounds causes him pain; he cannot stay in one position for long periods for driving and other regular activities. He cannot play sports or have an active social life as he used to. He sleeps with pillows and towels to relieve his back pain. There is some evidence on this element.

Loss of earning capacity

B-Line complains that Cagiano did not plead for loss of future earning capacity. This is correct, he did not; but neither did B-Line object to the submission of a damage question on this element. That complaint is waived. We therefore turn to B-line’s complaint that there was no evidence of loss of earning capacity. Loss of earning capacity is a plaintiff’s diminished ability to work after the date of trial.47 It is true that the bulk of Cagiano’s testimony regarding his ability to work focused on the time between his injury and trial, which should be characterized as past lost earnings,48 is different from lost earning capacity, and was not an element of damage before this jury. Nevertheless we find there is more than a scintilla of evidence on loss of future earning capacity. Cagiano was born December 18, 1973, which would make him twenty-five years old at the time of trial. Cagiano’s evidence of loss of earning capacity was that he was employed at B-Line:

*9 Q: When you were hired by B-Line, did you consider that the best job you ever had?

A: Yes.

Q: Was it the highest paying job that you ever had?

A: Yes.

Q: Would you tell me and ladies and gentlemen of the jury how much an hour you were making when you initially started?

A: Five dollars an hour.

Q: And did you also receive additional funds each month besides that from B-Line.

A: Repeat the question?

Q: Did you receive any additional money, besides your paycheck?

A: Yes, I did.

Q: What did you receive?

A: They had monthly bonuses.

Q: And how much was your monthly bonus?

A: At first it was fifty dollars; and then at the end it was three hundred dollars.

Q: Okay. So it increased each month?

A: Yes.

Q: What were your working hours?

A: Monday through Friday when I first started, it was 7:30 and 6:00; and on Saturdays, 7:30 to 2:00. And that changed to Monday through Friday, 7:30 to 6:00; and then Saturday, 7:30 to noon.

At the time of trial, he was employed by H & K Armored Services “picking up people’s deposits.”

Q: [D]o your duties call for any heavy lifting or bending and stooping?

A: If there is anything like that, we get dollies and things like that.

Q: Is you employer aware of your job limitations?

A: Yes.

Q: Knows about your prior surgery?

A: Yes.

Q: How much are you making an hour working for H & K Armored Services?

A: We average about six dollars an hour.

Q: Okay. So is your pay more now than what you made for B Line at the time you left, or is it less?

A: It is less.

Q: Do you feel like you will ever be able to return to that kind of work?

A: No, I don’t.

The difference between Cagiano’s gross yearly income at B Line, including bonuses ($14,000), and his yearly income at his new job ($12,480), is $1,520 per year. Multiplied times the number of working years he could reasonably anticipate, until age 65, he has a loss of earning capacity of $60,800. The jury’s finding of $22,777 is far less, and is supported by more than a scintilla of evidence.

Examining the evidence favorable to the verdict, disregarding all evidence to the contrary, we find there was legally sufficient evidence to support each element of damage submitted to the jury. We voice no opinion as to the factual sufficiency of the damage evidence, as B-Line has not raised a complaint on that issue. Point of Error Eight is overruled.


The trial court’s judgment is affirmed.



Atchison, Topeka and Santa Fe Ry. Co. v. Cruz, 9 S.W.3d 173, 177 (Tex.App.-El Paso 1999, no pet.).




Id. (citing Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983)).


Bradley v. Rogers, 879 S.W.2d 947, 954 (Tex.App.-Houston [14th Dist.] 1994, writ denied).


Bradley, 879 S.W.2d at 954.


Cities Servs. Co. v. Ellison, 698 S.W.2d 387, 388-89 (Tex.App.-Houston [14th Dist.] 1985, writ ref’d n.r.e.).


Blankenship, 984 S.W.2d at 773.


Id. at 774.


Id. at 776.








675 S.W.2d 729, 731 (Tex.1984).




Id. at 733.


Id. at 731.






Id. at 733.


DeLeon v. Furr’s Supermarkets, 31 S.W.3d 297, 300 (Tex.App .-El Paso 2000, no pet.).


TEX.R. CIV. P. 278.


Castro v. U.S. Natural Resources, 880 S.W.2d 62, 65 (Tex.App.-San Antonio 1994, writ denied).


Hall v. Timmons, 987 S.W.2d 248, 255 (Tex.App.-Beaumont 1999, no pet.) (emphasis added).


DeLeon, 31 S.W.3d at 300.


701 S.W.2d 243, 245 (Tex.1985).


878 S.W.2d 342, 344 (Tex.App.-El Paso 1994, no writ).




Yeldell, 701 S.W.2d at 245.






Pharo v. Chambers County, 922 S.W.2d 945, 948-49 (Tex.1996).


Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 372 (Tex.2000).


TEX.R. CIV. P. 327(a).


Jackson, 24 S.W.3d at 372.


Kiefer v. Continental Airlines, Inc., 10 S.W.3d 34, 40 (Tex.App.-Houston [14th Dist.] 1999, pet. denied).


Palmer Well Services, Inc. v. Mack Trucks, Inc., 776 S.W.2d 575, 576 (Tex.1989).


TEX. GOV’T CODE ANN. § 62.015(a) (Vernon 1998).


See Fish v. Bannister, 759 S.W.2d 714, 722 (Tex.App.-San Antonio 1988, no writ).


776 S.W.2d 575, 576 (Tex.1989).










Ortiz v. Furr’s Supermarkets, 26 S.W.3d 646, 652 (Tex.App.-El Paso 2000, no pet.).


Saenz v. Fidelity and Guaranty Insurance Underwriters, 925 S.W.2d 607, 614 (Tex.1996)).


Household Credit Services, Inc. v. Driscol, 989 S.W.2d 72, 91 (Tex.App.-El Paso 1998, pet. denied).


Border Apparel East, Inc. v. Guadian, 868 S.W.2d 894, 897 (Tex.App.-El Paso 1993, no writ).



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