## NO. 12

- 19

- 00384

- CV

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

THURSTON, OWENS & NEWMAN, L.L.C., D/B/A SOUTHWEST RESTAURANT & BEVERAGE SOLUTIONS, APPELLANTS/CROSS

APPELLEES , APPELLANT S

V.
JERRY DAVIS, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE EST ATE OF HAYDEN DAVIS, KAREN DAVIS, AND SUMMER HERNANDEZ, AS NEXT FRIEND OF G.L.D. AND C.N.D., APPELLEES/CROSS

- APPELLANTS , APPELLEE S §

§

§ APPEAL FROM THE

COUNTY COURT AT LAW NO

. 2

GREGG COUNTY, TEXAS

M EMORANDUM OPINION Thurston, Owens & Newman, LLC d/b/a/ Southwest Restaurant & Beverage Solutions (Southwest) appeals the trial court ’ s amended judgment and award render ed in fa vor of Appellee Jerry Davis, both i ndivi dually and as p ersonal r epresentative of the Estate of Hayden Davis, Karen Davis, and Summer Hernandez a nd as n ext friend of G.L.D. and C.N.D. Southwest raises four issues on appeal ; Davis raises two cross p oints. We reverse and modify in part , suggest remittitur , and affirm as modified in part

.

B ACKGROUND Hayden Davis worked as an apprentice electrician for Gill Electric

. On September 27, 2017, Hayden was working near a refrigeration unit located a t a bu siness in White Oak, Texas , which was owned by Southwest . Unbeknownst to Hayden, the unit previously had been wired2 incorrectly by Southwest , whose employee connected a “ hot ” wire to a ground lug, in an attempt to keep the equipment running

. Whil e workin g near the unit , Hayden was electrocuted. At t he time of his death, Hayden was twenty

- four years old and h ad two young daughters. Davis filed suit for wrongful death

. Southwest answered , asserted the negligence of
others as an affirmative defens e , and, later, named Gi ll Electric as a responsible thir d party. At the conclusion of trial, the jury found that the negligence of Southwest (40%), Gill Electric (40%), and Hayden Davis (20%) were the proximate causes of Hayden ’ s death an d, in pertinent

p art, awa rded damages fo r future pecuniary loss in the am ount of $1,000,000.00 to Hayden ’ s d aughter , Calli Davis , and $750,000.00 to his daughter, Grace Davis.
Southwest filed a motion for remittitur with regard to the jury ’ s award for future pecuniary lo ss . Th e court suggeste d a remitter of $ 425,000.00 to Calli Davis and $ 475,000.00 to
Grace Davis , to which Davis consented. The trial court signed an amended final judgment , which reflect ed the lower award s , and this appeal and cross appeal followed.

F AC TUAL S U FFICIENCY

– F UTURE P ECUNIARY L OSS In its first issue, Southwest argues that the evidence supporting the award after remittitur for future pecuniary loss is against the great weight and preponderance of the evidence. In his first cross point, Davis argues that the trial court abused i ts discretion in suggesting remittitur of
the award for future pecuniary loss because the evidence is in sufficient to support the suggestion
of remittitur

. 1 Standard of Review and Governing Law
W hether damages awarde d are e xcessive or whether a trial co urt should have ordered a
remittitur is reviewed for factual sufficiency. See Maritime Overseas Corp. v. Ellis , 971 S.W.2d 402, 406 (Tex.1998) ; Rose v. Doctors Hosp. , 801 S.W.2d 841, 847 (Tex. 1990). When the complain ing par ty ha s the burden of proof and the factfinder return s an adverse finding, the complaining party must challenge the finding on the basis that it proved the issue as a matter of
law or that the jury ’ s answer is against the great weight and pre ponderan ce of t he evidence. See
Lo tt v. Brow n , No. 12

- 17

- 00093

- CV, 2018 WL 6191301, at *2 n.3 (Tex. App.

– Tyler Nov. 28,

1 “If a party makes the remittitur at the trial judge ’ s suggestion and the party benefitting from the remittitur appeals, the remitting party is not barred f rom contending in the court of app eals that all or part of the remittitur should not have been required, but the remitting party must perfect an appeal to raise that point. If the court of appeals sustains the remitting party ’ s contention that remittitur sho uld not have been r equire d, the court must rende r the judgment that the trial court should have rendered.” T EX

. R. A PP

. P. 46.2.3 2018), supplemented , 2018 WL 6287920 (Tex. App.

– Tyler Dec. 3, 2018, no pet.) (mem. op.)

. However, if the complaining party did not have the bu rden of proof, it must challenge an a dverse finding by arguing that there is no evidence or insufficient evidence to support the finding. See
i d. Factual sufficiency challenges require courts of appeals to weigh all the evidence in the
record. See Ort iz v. J ones , 917 S. W.2d 770, 772 (Tex . 1996). However, in reviewing a finding under the “great weight and preponderance of the evidence” standard, we first must look to the record to determine whether some evidence exists in support of the finding. Dow C hem. Co

. v. Francis , 46 S.W.3d 23 7, 2 41

– 42 (Tex. 2001)

. If such evidentiary support exists, we then
consider whether any evidence contrary to that finding exists, and if it does, we will determine whether, based on the evidence in the record, the finding is so c ontrary to the overwhelming

we ight and preponderance of the evidence as to be clearly wrong and manifestly unjust, or if the great preponderance of the evidence supports the nonexistence of that finding. See Pearl Res.
LLC v. Charger Svcs, LLC , No. 08

- 19

- 00096

- CV, 2020 WL 4251373, at *5 (Tex. App.

– El Paso
Jul . 24, 2020 , pet. filed ) (op.) (citing Castillo v. U.S. Fire Ins. Co. , 953 S.W.2d 470, 473 (Tex. App.

– El Paso 1997, no writ) )

. The court ’ s charge defined “pecuniary loss” as “the loss of the car e, main tenance, support, services, ad vice, counsel, and reasonable contributions of a pecuniary value that Calli Davis and Grace Davis, in reasonable probability, would have received from Hayden Davis had
he lived.” See Moore v. Lillebo , 722 S.W.2d 683, 6 87 (Tex . 1986). Southwest did not ob ject to
this definition. We , therefore , measure the sufficiency of the evidence against the charge as given. Osterberg v. Peca , 12 S.W.3d 31, 55 (Tex. 2000)

. 2 “Pecuniary loss in a wrongful death case is not subject to a prec ise mathematical calculation, an d the jury is given significant discretion in determining this element of damages.” Christus Health v. Dorriety , 345 S.W.3d 104, 113 (Tex. App

. – Houston [14th Dist.] 2011, pet. denied). Pecuniary losses may be recovere d eve n in the absence of specific evi dence of the
amount of contributions the decedent made before his death or that he would have continued to
make in the future. Id. ; see also B adall v. Durgapersad , 434 S.W.3d 626, 638 (Tex. App.

–

2 In its brief, Southwest argues that the projection into the future of Hayden ’ s past earnings is the “primary element” t o b e used in determinin g fut ure pe cuniary loss. Ho wever, since Southwest failed to object to the “pecuniary loss” definition in the court ’ s charge, we will not weigh this component more heavily in our analysis. See id.4 Houston [ 1st Dist.] 201 4, pe t. denied) (jurors may apply kno wledge and experience to estimate value of services, such as household services, rendered by decedent without proof of value)

. Thus, a jury de termining an award for pecuniary loss may look beyond evidence of calculable
fina ncial contributions. See Dorrie ty , 345 S.W.3d at 113

. Discussion In this case, the jury heard evidence that Hayden was a devoted father to two young girls, Calli, age five , and Grace, age three

. Jerry Davis , Hayden ’ s father, testified that Hayden c ared for his daughters three to four days per week and spent a lot of time with them

. He specified that Hayden w o k e up two hours before work to get his daug h ter s ready in the morning and spent time
with them from the time he finished work until they went to sl eep at night. According to Jerr y , Hayden ’ s role in their lives was one of a cook , a sitter, and a chauffer

. Additionally, Jerry described how Hayden took a great interest in their collective physical and emotional well

- being,
coordinat ed their activ ities and exercise, and encouraged an d foster ed a religious foundation for
them

. Jerry also described how Hayden regularly would engage in recreational activities with his girls . T he jury reasonably could determine that such services might be provided , in Hayd en ’ s absence, by day care, camps , or other recreational organizations

. Jerry further described how Hayden provided the girls with food, clothing, transportation, housing, and daycare costs

. Furthermore, the jury was able to consider testimony about Hayde n ’ s relationship with his parents, who, the record reflects , provided support to Hay den in adulthood, which included
their permitting him and his daughters to live with them , their planning to invest in his future by providing financial support to hel p him study to be a journeyman electrician , and their offering to provide seed money to him and his brother to start a business someday . Thus, the jury
reasonabl y could have found that Hayden would have been inclined to provide financially for his daughte rs pa st their eighteenth birthdays

. 3 For in stance, Jerry testifi ed that it was Hayden ’ s dream for his daughters to go to college. As a result, the jury reasonably could have found that Hayden would want to offer financial support for his daughters ’ secon dary education s

. In contrast, Southwest a rgues that despite thi s evidence of Hayden ’ s devotion to his daughters, other evidence supports a conclusion that he lacked motivation, previously had
endured academic struggles , and faced an uphill battle in pas sing the test to become a

3 We note that the court ’ s charge doe s not place any time lim itation s in its charge on what the jury can consider in determining an award for future pecuniary loss. See Osterberg , 12 S.W.3d at 55

.5 journeyman electri cian, much less that h e likely would achieve his goal of becoming a master electrician. Thus, according to Southwest, despite Hayden ’ s best intentions, his prospects for reaching an earning capacity to provide f or hi s daughters at a level on par with the jury ’ s future pecuniary loss award was not supported by the great weight and preponderance of the evidence. We disagree. The jury also was able to consider Jerry ’ s tes timony about Hayden ’ s passion for being a n ele ctrician along with his testimony that , prior to his death, Hayden had ac cumulated enough
hours on the job as an apprentice electrician , which is a significant hurdle to be eligible to sit for the journeyman electrician ex am. Moreover, the jury was ab le t o consider Jerry ’ s testimony about Hayden ’ s academi c struggles in conjunction with his observations about how Hayden was
able to flourish when he moved to a charter school later in his high school years and , ultimately , gr aduated and spoke at his gradu atio n. The jury was able to consider this testimony in conjunction with Jerry ’ s testimony that he hired a consultant to help Hayden study for the journeyman exam. And although Southwest stresses the difficulty of this ex am based on Gilbert
Smith ’ s testim ony that it would be a difficult exam for him and m ost people fail the test at least once, the jury was entitled also to consider Smith ’ s testimony that the test was “open book” and that for many people, the test is “not t hat hard.” Furthermore, the jury was entitled to rely on Cody Gill ’ s testimony that he expected Hayden to become a journeyman electrician and, eventually, a master electrician , as well as Gill ’ s testimony that Hayden was a good employee, had the ambition to go further as an electrician, a nd , doubtlessly , could have done anything he
set his mind to accomplish. Based on the entirety of the record, we conclude that the jury reasonably could have found that Hayden would, at least, have reach ed the level of journeyman electrician, which , considere d in conjunction with evidence that Hayden had a life ex pectanc y of
an additional fifty

- three years, would have provided ample income to account for the jury ’ s award of future pecuniary los s. We have considered the record in its entirety. In so doing , we ar e mindful that the jury is given significant discre tion in determining this element of damages and may apply its collective knowledge and experience to estimate the value of services re ndered by the decedent without proof of value

. Dorriety , 345 S.W. 3d at 117 ; see also Badall , 434 S.W.3d at 638 . Yet, in conducting our factual sufficiency analysis, we remain mindful that the future services potentially rendered by the decedent must have some evidentiary basis

. See Dow Chem. Co. , 466 S.W.3d at 241

– 42. And even though measuring pecuniary loss is inherently speculative and
i m precise , the jury ’ s discretion in this regard cannot include valu ation for decedent

- rendered
services that are a product of unbridled speculation. Cf. Pediatrics Cool Care v. Thomps on , N o. 14

- 19

- 00031

- CV, 2021 WL 307306, at * 11 (Tex. App

. – Houston [14th Dist .] Jan. 29, 20, no pet. ) (citing John Deere Co. v. May , 773 S.W.2d 369, 3 79

– 80 (Tex. App.

– Waco 1989, writ denied) )

. Based on our review of the record, we conclude that there is ampl e evidence to support
the award after remittitur for Calli ’ s and Grace ’ s future pecuniary loss in the following categories : (1) nonparental childcare including daycare, summer care, after school care, and after school pickup when after school care no long er is available; (2) monetary attribution for

care p rovided by Hayden during the four days per week the girls are in his care; (3) child support

paymen ts; 4 (4) food for the four days per week the girls are in Hayden ’ s care; (5) clothing; (6) transport ation costs for the four days per week the girls are in H ayden ’ s care , as well as the cost of moderately priced used cars when the girls are licensed to dr ive ; (7) housing costs for the four days per week the girls are in Hayden ’ s care; (8) healthcare out

- of

- po cket costs and premiums not paid by an employer , inc luding physical care and mental health care ; (9) college tuition , housing costs , and books for a four year college in Texas ; (10) birthday and Christmas gifts; and (1 1 ) miscellaneous expenses , includ ing t hings such as personal care items, entertainment, an d reading materials. However, certain categories of future pecuniary loss for w hich Davis argues , such as music lessons, tutoring, vacations, orthodonture, weddings , and inheritance , were not
proper ly co nsidered because the likelihood and/or frequency of their respective occurrences lack
even inferential evidentiary support and , in s pite of the jury ’ s significant discretion on the issue, are too speculative to form the basis of a future pecuniary los s det ermination

. 5 Based on the foregoing, w e hold that t he evidentiary support for the award for future pecuniary loss after remittitur is not against the great weight and preponderance of the evidence

. Southwest ’ s first
issue is overruled.

4 There is evidence that despite the fact that he and his daughters’ mother never were marr ied , Hayden signed an agree ment to pay child suppo rt.

5 Ther e is evidence in the record that supports Calli ’ s potential need for further grief counseling. However, the definition of future pecuniary loss in the court ’ s charge premised the potential awar d o f “ contributions of a pe cuniary value that Call i Davis and Grace Davis, in reasonable probability, would have received from Hayden Davis had he lived

. ” The evidence of record indicates that the sole reason und erlying Calli ’ s need for grief counseling w as Hayden ’ s death. Had he lived, Calli ’ s need for grief counseling would be obviated.7 Moreover, based on our review of the record and consideration of th e evidence underlying the aforementioned categories on which a determi nation of future pecuniary loss
could be based and comparing them with those without sufficient evidentiary foundation , we conclu de th at while the evidence supports an award to both Calli and Grace for future pecuniary
loss in excess of the amount awarded after remittitur , the amount of the jury ’ s award s for future pecuniary loss to Calli and Grace are against the great weigh and pr epon derance of the evidence.
Therefore , we hold that the evide nce is insufficient to support the amount of remittitur suggested by t he trial court , even though a suggestion of remittitur itself was appropriate. Davis ’ s first cross point is overruled.

E X CLUS ION OF E VIDENCE In its second issue, Southwest argues that the trial court abused its discretion in excluding
evidence related to Hayden ’ s past marijuana use because such evidence was relevant to the issue of future pecuniary loss.
Standard of Review and Governing Law
A trial court ’ s evidentiary ruling is review ed under an abuse of discretion standard.
Owens

- Corning Fiberglas Corp. v. Malone , 972 S.W.2d 35, 43 (Tex. 1998) ; Bedford v. Moore , 166 S.W.3d 454, 465 (Tex. App.

– Fort Worth 2005, no pet.)

. A cou rt abuses its discretion only when it rules without regard to any guiding rules or principles. Bedford , 166 S.W.3d at 465. The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellat e jud ge in a similar circumstance does not demonstrate that an

a

buse of discretion has occurred. Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 242 (Tex. 1985)

. Furthermore, a trial court ’ s e xclusion of evidence is harmful only if the evidence is

c ontr olling on a material issue and is not cumulative. See Ment is v. Barnard , 870 S.W.2d 14, 16 (Tex. 1994); Franco v. Franco , 81 S.W.3d 319, 321 (Tex. App.

– El Paso 2002, no pet.). A successful challenge to an evidentiary ruling generally requires showin g tha t the judgment turned on the particular evidence in dispute

. Tex. Dep ’ t of Transp. v. Able , 35 S.W.3d 608, 617 (Tex. 2000). We examine the entire record in determining harm. See Interstate Northborough P ’ ship
v. State , 66 S.W.3d 213, 220 (Tex. 2001)

. W e must uphold the trial court ’ s evidentiary ruling if
there is any legitimate basis for the ruling. Owens

- Corning , 972 S.W.2d at 43.8 Evidence is relevant, and, therefore, admissible, if it has any tendency to “make the existence of any fact that is o f co nsequence to the determination of the action more probable or less probable than it would be without the evidence.” T EX

. R. E VID

. 401, 402; Serv

. Corp

. Int ’ l
v. Guerra , 348 S.W.3d 221, 237

– 38 (Tex. 2011). To determine relevancy, the court must look a t th e purpose for offering the evidence. Serv

. Lloyds Ins

. Co

. v. Martin , 855 S.W.2d 816, 822 (Tex. App.

– Dallas 1993, no writ). There must be some logical connection , either directly or by
inference , between the evidence offered and the fact to be proved

. S ee Rhey v. Redic , 408 S.W.3d 440, 460 (Tex. App.

– El Paso 20 13 , no pet.) (citing Serv

. Lloyds , 855 S.W.2d at 822 )

. However, eve n relevant evidence may be inadmissible. Under Texas Rule of Evidence 403, a trial court may exclude evidence if its probati ve v alue is substantially outweighed by the danger of unfair pr ejudice. See T EX

. R. E VID

. 403 ; Fitzpatrick v. Watson , No. 12

- 08

- 00 084

- CV, 2010 WL 337330, at *3 (Tex. App.

– Tyler Jan. 29, 2010, no pet.) (mem. op.)

. Testimony is not
inadmissible on the sole gro und that it is “ prejudicial ” because in our adversarial sys tem, much of a proponent ’ s evidence is legitimately intended to wound the opponent. See Diamond Offshore Servs

. Ltd. v. Williams , 542 S.W.3d 539, 549 (Tex. 2018). Rather, unfair prejudice is
the proper inquiry. Id. “Unfair prejudice ” within this contex t means “ an undue tendency to suggest decision on an improper ba sis, commonly, though not necessarily, an emotional one. ”
Id. At the pretrial hearing on the matter and , later, in its offer of proo f, Southwest argued that evidence of Hayden ’ s post mortem t oxicology test, which revealed a trace amount (2.2

nanograms per milliliter) of T

. H

. C

. , the active ingredient in marijuana , and Gill ’ s knowledge that Hayden had consumed marijuana when he was in hi gh school w ere relevant to the issue of his future earning capacity , particularly in light of Gill Electric ’ s drug use policy. At the hearing, Southwest argued that evidence of Hayden ’ s past marijuana use was relevant to his future earning capacity b ecaus e such evidence supported a lack of sobriety and its connec tion to a reduced earning capacity was a matter of the jury ’ s common knowledge . We disagree. In support of its proposition, Southwest cites Hadley v. International

- Great N orthern
Railroad Compa ny , 268 S.W.2d 738 (Tex. Civ. App.

– Texarkana 1954, writ dism ’ d), wherein the court stated, in pertinent part, as follows :

The age, health, habits of industry, sobriety and economy of the plaintiff are legitimate matters of inquiry to enable the jury to de termine the pecuniary loss incident to the injuries alleged . . . . If9 the plaintiff be afflicted in mind or body, or i f he be indolent, drunken and thriftless, the defendant ought to be permitted to prove the fact, so as to show that his earning cap acity is not that of a person of ordinary endowments, mental or p hysical, and of ordinary habits.

Id. at 741

. Here , the ex cluded evidence at issue consists of a post

- mortem toxicology test demonstrating that Hayden used marijuana on at least one occasi on pr ior to his death 6 and testimony that his employer was aw are that he used marijuana at some point when he was in high
school . This evidence of isolated marijuana use , without more, simply does not tend to make the
existence of any fact that is of cons equen ce , such as H ayden ’ s “habits” or his “sobriety , ” as those things relate to his future earning capacity, his ability to hold a job, or his ability to earn a living , any more probable than it would be without such evidence. See T EX

. R. E VID

. 401.
So uthwe st attempts to bridge the analytical gap between iso lated marijuana use and future earning capacity by arguing that Gill Electric ’ s supposed “zero tolerance” drug policy , when considered in conjunction with this excluded evidence, makes it more probab le th at he
eventual ly would have been fired from his job at Gill Electric, would not have been hired elsewhere, and never would have achieved his goals of advancement in his field. But
Southwest ’ s argument is not borne out in its offer of proof . There, i t rep eatedly attempted to ask Gill about the rigidity of this “zero tolerance” policy. In the offer of proof, Gill not only declined

to agree that Gill Electric ’ s drug policy was “zero tolerance,” but he equivocate d on the rigidity of this policy again an d aga in . Specifically, Gill testified in Southwest ’ s off er of proof as follows:

Q. In fact, sir, after this incident, you learned of a positive toxicology result for [Hayden] ; is that correct, sir? A. I did.
Q. Okay. I assume that Gill Electric h as a no tolerance policy? A. I ’ m sorry?
Q. A no toleranc e policy on drugs

-- A. We

-- we drug test, yes, we do.
Q. And if something is found, positive test comes back, someone is terminated, right? A. We can terminate them, yes, sir.

6 During the pretrial hearing, Davis argued that the amount of marijuana detected by the toxicology test was a trace or insign ificant amount. Southwest did not contest Da vis ’ s argument to the tr ial cou rt on this point

.10 Q. Okay. And, i n fac t, in this case, you did the random drug screen aft er this incident, and you determined everybody except, I think, one you told me, and that was somebody that came back to you and said, “ Hey, we need to wait a little while ”

-- A. He came to me before the drug testing.
Q. That ’ s right. So in this case, [ Hayden] wouldn ’ t have come to you before you would have found out about a positive result after the incident, right? A. I didn ’ t drug test him for that.
Q. I understand. But you unders tand he was drug tested as a result of this incident, right? A. Yes

. Q. Okay. So let ’ s say [Hayden] made it, okay, he didn ’ t perish, he was just injured. As a result of this incident, Gill Electric would have terminated him; isn ’ t that correct, sir? A. I would have prob ably drug tested him if something severe happened t o him, yes.
Q. And we know he tested positive on this [ in ci dent ] , right? A. Yes, we do.
Q. And when you received that positive result, [Hayden] would have been terminated, correct? A

. I think it woul d have been at my discretion. I would have asked hi m what ’ s going on. I would have found out what

-- how much and what was he using; was it cocaine, was it pot. I think it ’ s 100 percent our discretion.
Q. Okay. So let ’ s talk about tha t for a minut e. Y ou had

-- you ’ d known about [Hayden ’ s ] using pot in the past, right? A. I knew when he was younger, he did a lot of silly things.

. . . . Q. You were aware that [Hayden] had a history of using pot? A. I knew he did when he was young.
Q. Okay. Well, he

-- he was what, 24, on the day of the incident? A. Almost 25.
Q. Almost 25, okay. So this was back in his teenage years, I assume, or do you know? A. I ’ m assuming during his

-- his high school years. Q. But he had informed y ou that that was a ll be hind him, he wasn ’ t doing that anymore, right? A. H e did.
Q. But the evidence clearly shows to the contrary, right? A. I could tell after the incident that he failed the drug test, yes.
Q. Well, and you ’ re aware that to fail a d rug test, you have to u se marijuana, right? A. Yes.

It is apparent from Gill ’ s testimony in Southwest ’ s offer of proof that not only was Gill
Electric ’ s drug policy not “zero tolerance,” but also that there was a degree of flexibility in this policy , whi ch was subject t o Gil l ’ s sole discretion

. Most tellingly, h is testimony r eveals that11 following Hayden ’ s death, he tested all of his employees for drugs but allowed one employee to delay his test for “a little while

. ” It further reveals that a failed drug test based on m ariju a na use , particularly when it came to an employee lik e Hayden, wh o he testified elsewhere that he thought of “as a son,” was unlikely to result in that employee ’ s termination

. Southwest further contends that the jury could apply its common knowledge of

co m munity standards to find that Hayden ’ s past, isolate d, marijuana use w ould prove so detrimental to his career prospects that he never would earn more than he did at age twenty

- four.
Se e Missouri Pac. R. Co. v. Kimbrell , 334 S.W.2d 283, 286 (Tex. 196 0) (j u ry has power to consider as proven any matter that i s of common knowledge in community). We disagree

. 7 T he dichotomy of Southwest ’ s argument is revealed in its brief. On the one hand, it contends that evidence of any marijuana use by Hayden is rel evant to support a jury finding that he was, as a result, consigned to a lifetime of unremarkable financial prospects

. Yet, o n the other hand, it argues that th e prejudicial impact, if any, of Hayden ’ s marijuana use was minimal because “marijuana use is n ot as controversial as it once was, and it is a matter eas ily understandable by a jury.” We recognize that there could be circumstances under which marijuana us e might be impactful on an individual ’ s career prospects and earning capacity

. But w e cannot c onclu d e in
this case that a j ury with knowledge of the exc luded evidence of Hayden ’ s isolated marijuana use reasonably could make the finding that such usage was detrimental to his earning capacity based on its common knowledge of contemporary community st andar d s

. Cf. Kimbrell , 334 S.W.2d at
286. Lastly, Sout hwest argues that Davis opened the door to the admission of the excluded evidence by eliciting testimony that Hayden potentially could reach the level of master electrician, wherein he could earn in exce s s of $80,000.00 annually. The concept of an

attorne y ’ s “op ening the door” to what would otherwise be inadmissible evidence or testimony on cross examination is based upon the fact that once the opposing party has opened an inquiry into a particular subject , that party cannot complain when the other party des ires to go into the details

7 As Southwest notes in its brief , possession of marijuana for personal use in Texas generally is a misdemeanor

. See T EX

. H EALTH & S AFETY C ODE A NN

. § 481.121 (b)(1) (West 2017 ). But in this case, there is no evidence that Hayden ever wa s convicted of t he offense of possession of marijuana. Furthermore, the question here

–– whether the jury reasonabl y could adopt , as fact , its knowledge of community stand ards

–– relates to the jury ’ s understanding of Hayden ’ s p ast , isolated marijuana use and how such use mi ght reasonably affect hi s ability to earn a living in the ensuing decades

. We do not agree , absent a conviction, that t he misdemeanor stat us for possession of a small amount of marijuana has any bearing on th is determination.12 of that subject. Moreno v. Tex. Dep ’ t of Transp. , 440 S.W.3d 889, 893 (Tex. App.

– El Paso 2013, pet. denied)

. But a party seeking admission of otherwise inadmissible e vidence pursuant

to Texas Rule of Evidence 107 must satisfy two t hreshold requirements. 8 See Crosby v. Minyard Food Stores, Inc. , 122 S.W.3d 899, 903 (Tex. App.

– Dallas 2003, no pet.). First, some portion of the matter sought to be “ completed ” must actual ly have been introduced into evidence

. Id. at
903. Second, the party seeking to complete the matter must show that the remainder being
offered under R ule 107 is on the same subject and is necessary to fully understand or explain the

matter. Id. Here, a s set f o rth above, Davis ’ s eliciting testimony about Hayden ’ s potential to
advance in his career bears no relation to evidence of past, isolated instanc es of marijuana use on his part because the excluded evidence, without more, did not demonstrate habitua l use o r an ongoing impact on his sobriety. See T EX

. R. E VI D

. 401; Hadley , 286 S.W.2d at 741. Furthermore, the excluded evidence is not on the same subject, nor is it necessary to fully understand or explain Hayden ’ s future earning capacity. See T EX

. R. E VID

. 4 01; Hadley , 286
S.W.2d at 741. Therefore, we conclu de that Southwest was not entitled to have the excluded evidence admitted pursuant to Rule 107.
Because the excluded evidence did not make the existence of any fact that is of consequence to the determi n ation of Hayden ’ s future earning capacity more proba ble or less probable than it would be without the evidence , we hold that it was not relevant. See T EX

. R.
E VID

. 401. Therefore, the trial court did not abuse its discretion in excluding the evid ence. S ee T EX

. R. E VID

. 402. Southwest ’ s second issue is o verruled.

B

ATSON C HALLENGE In its third issue, Southwest argues that the trial court abused its discretion by sustaining
Davis ’ s Batson 9 challenge because Davis f ailed to prove Southwest engaged in pur p oseful racial
discrimination.

8 Ru le 107, entitled “Rule of Optional Completeness” states, in pertinent part, that “[w]hen part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject ma y b e inquired into by the o ther, a nd any other act , declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in eviden ce [

. ] ” T EX

. R. E VID

. 107.

9 See Batson v. Kentucky , 476 U.S. 79 , 86, 106 S. Ct. 1712, 1 717, 90 L .Ed.2d 69 (198 6)

.13 St andard of Review a nd Governing Law
We review a trial court ’ s Batson ruling for an abuse of discretion. Davis v. Fisk Elec.
Co. , 268 S.W.3d 508, 515 (Tex. 2008). A trial court abuses its discretion if it acts a rbitrar ily , unreasonably, or without reference to any guiding rules or legal principles. Goode v. Shoukfeh , 943 S.W.2d 441, 446 (Tex. 1997). Our rules generally permit eac h party in a civil action in district court to exercise six peremptory strikes whic h, are use d to “strike” potential jurors without offering any r eason or explanation. T EX

. R. C IV

. P. 232, 233. While no reasons for the strikes are required, peremptory

st rikes exercised for an improper reason, such as race, are unconstitutional. Batson , 476 U .S. at 89, 106 S. Ct. at 1719

. A Batson challenge is re solved using a three

- step process. See Murphy v. Arcos , 615
S.W.3d 676 , 686 (Tex. App.

– Dallas 2020, pet. filed ) (citing Davis , 268 S.W.3d at 514 n.4 )

. At the first step, the party challenging the pe rem ptory strike must establish a prima facie case of

rac ial discrimination. See Batson , 476 U.S. at 96

– 97, 106 S. Ct. at 1723 ; Davis , 268 S.W.3d at
514 n.4. To establish a prima facie case, the challenging party may rely on “the totality of the

re levant fac ts” giving rise to an inference of discriminatory pur pose. Batson , 476 U.S. at 93

– 94,
106 S. Ct. at 1721

. Once a prima facie case has been established, at the second step , the burden shifts to the striking party to come forward with a race

- neut ral exp lan ation for the strikes. Id. 476 U.S. at 9 7 , 106 S. Ct

. at 1723 ; Davis , 268 S.W.3d at 514 n.4. The race

- neutral explanation is a bu rden of production only. See Peetz v. State , 180 S.W.3d 755, 758

– 59 (Tex. App.

– Houston [14th Dist.] 2005, no pet.)

. This me ans that the reason offered need not be “persuasive o r even plausible,” so long as it is clear, reasonably specific, and “based on something other than the juror ’ s race.”
Purkett v. Elem , 514 U.S. 765, 768, 115 S. Ct. 1769, 1771, 131 L.Ed.2d 834 (1995) ; G oode , 943
S.W.2d at 445. Thus, at this second step, the trial court ’ s sole task is to determine whether the explanation is facially valid. Purkett , 514 U.S. at 768, 115 S. Ct. at 1771

. If the striking party offers a race

- neutral explanation, a t the t hir d step , the challenging party must prove purposeful r acial discriminat ion. See Batson , 476 U.S. at 98, 106 S. Ct. at
1724 ; Davis , 268 S.W.3d at 514 n.4. At this step, the persuasiveness of the justification for the peremptory strike is the crit ical is sue , and “implausible or fantastic justifications may (a nd14 probably will) be found to be pretexts for purposeful discrimination.” Purkett , 514 U.S. at 768,
115 S. Ct. at 1771.
In m aking its pretext determination, the trial court must consider “all releva nt circumstances.” Batson , 476 U.S. at 96, 106 S. Ct. a t 1723 ; Davis , 268 S.W.3d at 516

– 24. In so doing, certain factors are especially probative, including ( 1 ) whether a statistical disparity exists between the percentage of black and non

- black p otentia l j urors who were struck, ( 2 ) whether the record support s or contradi cts the striking party ’ s explanation for its strikes, (3) whether the striking party questioned the black panelists before striking them, and (4) whether there is any disparate tre atment of black panelists, i.e., whether the striking party ’ s e xplanations f or striking black jurors apply equally well to non

- black jurors who were not struck

. See Davis , 268 S.W.3d
at 518

– 19; Jackson v. Stroud , 539 S.W.3d 502, 508 (Tex. App.

– Houston [1s t Dist. ] 2 017, no pet.). The existence of any one of these fac tors tends to show that the striking party ’ s reasons are not actually supported by the record or are an impermissible pretext. Brumfield v. Exxon Corp. , 63 S.W.3d 912, 917 (Tex. App.

– Houston [ 14th Di st. ] 2002, pet. denied). Ultimately, on Batson issues , the trial judge ’ s assessment of a lawyer ’ s credibility often is important, and the best evidence frequently is the striking lawyer ’ s demeanor

. See Flowers v. Mississippi , 139 S. Ct. 2228, 22 4 3

– 44 , 204 L. Ed. 2d 638 (2019)

. Thus, Batson issues “lie peculi arly w ithin a trial judge ’ s province ” and its findings should be given “great deference.” Id.
at 2244.
Discussion In the instant case, Southwest used a p er emptory strike against venire memb er numb er six, who is a black female. The record reflects that S outhwest exercised p er emptory strikes against all three black venire members within the “ strike zone , ” as well as three non

- black venire
members. See, e.g. , Woods v. State , 801 S.W.2d 932, 9 40 (Tex . A pp.

–Austin 1990, pet. ref ’ d) ( appellant established str ong prima facie case of purposeful discrimination, including fact that

st at e used peremptory challenges to exclude all black venire members). In explaining the reasoning b ehind exercising th is stri ke, Southwest related to the trial court that it sought to strike
her because of her lack of education and because of her job as a custodia n for Pine Tree Independent School District . Southwest ’ s counsel elaborated somewhat wit h regard to her
educa tion le vel , explaining that he had “bad experiences with people that don ’ t have educations [ s ic ] ” and although some other panelists did not have college degrees, due to other statements15 they made during voir dire , “we felt good about the other ones.” S ee Lott v. Ci ty of Fort Worth , 840 S.W.2d 146, 153 (Tex. App.

– Fort Worth 1992, no writ) (while assessing venire member ’ s intelligence is highly subjective, simply stating that venire member “didn ’ t appear to be quit e that swift,” without more is insufficient to over com e presumption of discrimination in Batson hearing). Southwest’s counsel offered no substantive explanation of the correlation between the
venire member’s job as a custodian and her ability to serve on the jury. Rather, he sought to
defend the s trike i n t his regard , saying only that because venire member nu mber six worked as a
custodian , “we did not feel that she would be a good juror for our defendants.” Further, t he record does not indicate that Sou thwest engaged with venire member number
si x in an y m eaningful way. See Jackson , 539 S.W.3d at 511 ( failu re to question panelist about reason given for strike suggests pretext ); see also, e.g. , Woods , 801 S.W.2d at 937 (no examination, or only perfunctory examination of challenged venire member we ighs he avi ly against legitimacy of a facially race

- neutral expl anation and may illustrate sham or pretext). And with regard to venire member number six ’ s education, we rei terate , as Davis notes in his brief , that Southwest declined to exercise peremptory strikes ag ainst other venire members who lacked more than a hig h school education merely because it “felt good” about those venire members. See, e.g. , Mayr v. Lott , 943 S. W.2d 553, 558 (Tex. App.

– Waco 1997, no writ) (explanation that attorney ran out of s trikes doe s not remove the taint of striking a black juror who shared same characteristic as white juror and only highlights fact that attorney had choice between two similarly situated people and chose to strike the one who is black). 10
We have reviewed the rec ord and considered it in light of the aforementioned fact ors. Having done so, we note that Davis made a strong case supporting the exis tence of a statistical disparity between the percentage of black and non

- black venire members who were struck, a record con tradict ing Southwest ’ s explanation for its strike , and Southwest ’ s lack of engagement with venire member number six during voir dire

. We further note that Southwest engaged in disparate treatment of venire member number six on the subject of edu cation by comparison to

non
- black jurors wh o were not struck. S ee Davis , 268 S.W.3d at 518

– 19; Jackson , 539 S.W.3d

10 But see Green v. State , 839 S.W.2d 935, 939 (Tex. App.

– Waco 1992 , writ ref ’ d) (holding that disparate treatment not shown when attorney gave second, independent reason for striking nonwhite venire m emb er). Here, Southwest ex plained t hat one other venire member , who likewise lacked a college education, was not struck because he answered questions regarding “lockout/tagout” procedu res satisfactorily and , also , had experience doing electrical work on h is own. While this is an i ndependen t basis for th e strike of that venire member , we note that Southwest declined to question venire member number six about her knowledge of this procedure or as to whether she had any experience doing electrical work on he r o wn.16 at 508

. But in the case of one of these venire members, it offered an independent basis for the
strike , despite the fact that it did not qu estion ven ire member number six on that basis. Still, w e reiter ate that Batson issues “lie peculiarly within a trial judge ’ s province , ” that its findings should be given “great deference , ” and that the existence of any one of the aforementioned
factors te nds to sho w that the striking party ’ s reasons are pretextual

. S ee Flowers , 139 S. Ct. at
2244 ; Brumfield , 63 S.W.3d at 917

. Accordingly, we hold that the trial court , wh ich was in the best position to judge Southwest’s counsel’s demeanor, did not abuse i ts disc ret ion in sustaining
Davis ’ s Batson challenge to Southwes t ’ s peremptory strike against venire member number six.
Southwest ’ s third issue is overruled.

J URY A RGUMENT
- S ETTLEMENT In its fourth issue, Southwest argues that Davis engaged in incurable jury ar gum ent by referencing settlements to other defendants dur ing his opening statemen t and that the trial court
abused its discretion in denying its motion for mistrial. Standard of Review and Governing Law
Control of counsel ’ s conduct during jury argu ment re sts in the sound discretion of the
trial court. Richmond Condo miniums v. Skipworth Commercial Plumbing, Inc. , 245 S.W.3d 646, 667 (Tex. App.

– Fort Worth 2008, pet. denied) ; Wells v. HCA Health Servs. of Tex., Inc. , 806 S.W.2d 850, 854 (Tex. App.

– For t Worth 19 90, writ denied ). The test for improper jury argument is wh ether the argument could have persuaded a juror of ordinary intelligence to agree to a verdict contrary to that to which he would have agreed but for the argument. See Welch v.
McLean , 191 S.W .3d 147, 161 (Tex. App.

– Fort Worth 2005, no pet.) (op. on reh ’ g ). Reversal is required only when the entire record shows that argument was improper, uninvited and unprovoked, preserved by a timely objection, and incurable by instruction, withdrawal , or tr ial court reprimand. Richmond Condominiums , 245 S.W.3d a t 668; s ee Standard Fire Ins. Co. v.
Reese , 584 S.W.2d 835, 839 (Tex. 1979). An appellate court presumes , subject to rebuttal, that a jury will follow a trial court ’ s instruction to disregard

. See C ook v. Caterpillar, Inc. , 849 S.W.2d 434, 441 (Tex. App.

–Am arillo 1993, writ denied) ; see also Duncan v. Smith , 393 S.W.2d 798, 805 (Tex. 1965). Further, an appellant must show that the argument constituted harmful error by its nature, degree, and extent. R ichmond Condominiums , 245 S.W.3d at 668 (citing Standa rd Fire , 58417 S.W.2d at 839 )

. The party seeking reversal based on an allegedly improper argument must show that the probability that the improper argument caused harm is greater than the proba bility tha t the verdict was grounded on the proper proceedings a nd evidence. Richmond Condominiums , 245 S.W.3d at 668 (citing Standard Fire , 584 S.W.2d at 840).
Discussion In the instant case, Southwest complains that Davis made reference to settlement

n egotiat ion s in violation of Texas Rule of Evidence 408 and the t rial court ’ s order on
Southwest ’ s motion in limine as follows:

When Southwest Solutions was sued, they not only denied doing this, but they turned around and sued another

-- a number of othe r compa nie s and individuals at this site, pointing the finger at them.
I advised my clients that “ I don ’ t know what they know, I don ’ t know what happened. And so out of an abundance of caution, you need to sue these other companies, too, and see if ther e ’ s any thi ng to what Southwest is doing. ”
Every one of those com panies and individuals were dismissed from this case because there was no evidence to support those claims. And more importantly, not one of those companies or individuals ever had to pay a dime t o t his family. But you need to be aware of the fact

--

S outhwest objected, but the trial court addressed its objection in a bench conference off
the record and, thus, the substance of the objection is not apparent. See T EX

. R. A PP

. P. 33.1.
Non etheles s, the trial court instructed the jury to disregard Davis ’ s last statement “about payment, non

- payment from third parties that are not before this court.”
Texas Rule of Evidence 408 states in pertinent part as follows:

Evidence of the following i s not a dmi ssible either to prove or disprove the validity or

amoun t of a disputed claim :

(1) furnishing, promising, or offerin g

–– or accepting, promising to accept, or offering to accept

–– a valuable consideration in compromising or attempting to compromis e the c lai m ; and

(2) conduct or statements made during compro mise negotiations about the claim.

T EX

. R. E VID

. 408. Furthermore, the trial court ’ s order on Southwest ’ s motion in limine included “[a] ny mention of settlement negotiations as such is not allowe d u nder Rule 408. ” First, we disagree that Davis ’ s counsel ’ s statement that these other companies “were
dismissed from this case because there was no evidence ” to support claims against them and tha t18 none o f “ those companies or individuals ever had to pay a dime to this family” violates Rule 408
or the trial cour t ’ s order on its motion in limine. Davis ’s counsel made no reference to any
company ’ s or person ’ s “furnishing, promising, or offering

– – or a ccepting, promising to accept, or offering to acce pt

–– a v alu able consideration in compromise or attempting to compro mise ” any of Davis ’ s claims. See id. Furthermore, Davis ’ s counsel did not reference any conduct or statements made during compromise negot iations about its claims. See id. We simply cann ot

conc lud e that this statement, without more, violat ed Rule 408.
But even assuming arguendo that Davis ’ s counsel ’ s statement encroach ed on the spirit of
Rule 408 , the trial court instructed the jury to disregard the statement. See Cook , 849 S.W.2d at 441; se e a lso Duncan , 393 S.W.2d at 805. Southwest argues that th e presumption that the jury
followed the trial court ’ s instruction is rebutted by the fact that the jury found that Southwest ’ s responsib ility was apportioned at forty percent. We disagree.
Incur abl e jury argument occurs when comments are so inflammatory that their harmful nature cannot be cured by an instruction to disregard. Columbia Med. Ctr. of Las Colinas v.
Bush ex rel. Bush , 122 S .W.3d 835, 862 (Tex. App.

– Fort Worth 2003, pet. denie d); Nat ’ l Union Fire Ins. Co. of Pittsburgh v. Kwiatkowski , 915 S. W.2d 662, 664 (Tex. App.

– Houston [14th Dist.] 1996, no writ.)

. There only are rare instances of incurable harm from improper argument.
Standard Fire , 584 S.W.2d at 839 ; Bush , 122 S.W.3d at 862

. Alt hough an offer in compromise
and settlement is inadmissi ble as evidence, error in informing a jury of a settlement can be cured by an instruction to disregard. Bush , 122 S.W.3d at 862 (citing T EX

. R. E VID

. 408; Beutel v.
Paul , 741 S.W.2d 510, 513

– 14 (Te x. App.

– Houston [14th Dist.] 1987, no writ); Parks v. Benso n Co. , Builders , 393 S.W.2d 700, 703 (Tex. Civ. App.

– Fort Worth 1965, writ ref ’ d n.r.e.) )

. Furthermore, the jury heard t estimony that Southwest ’ s owner contacted Gill after the accident
and told h im that he had his technician “bootleg” the wiring in order to get the equipment up and running , which , even though contradicted by other testimony, certainly could support its
determination in partially apportioning liability to Southwest. Therefo re, we hol d that Davis ’ s counsel ’ s statement in opening argument d id not violate Rule 408 and, even assuming arguendo that it did, the trial court ’ s instruction cured any error

. Southwest ’ s fourth issue is over ruled.19 R ESPONSIBLE T HIRD
- P ARTY D ESIGNATION OF I MM UNE E MPLOYER In its second cross point, Davis argues that th e trial court committed reversible error when it refused its requests to strike the designation of Gill Electric as a responsible third party because Gill Electric, as a subscriber to a wo rkers ’ compe nsation insurance plan , is an immune employer under the Texas Workers ’ Compensation Act. Texas Civil Practice and Remedies Code, Section 33.004( l ) , which governs designation s of responsible third parties, sets forth, in pertinent part, as foll ows:

Aft er adequate time for discovery, a party may move to stri ke the designa tion of a responsible third party on the ground that there is no evidence that the designated person is responsible for any portion of the claimant ’ s alleged injury or damage . The court shall grant the motion to strike unless a defendant pro duces sufficie nt evidence to raise a genuine issue of fact regarding the designated person ’ s responsibility for the claimant ’ s injury or damage.

T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 33.004( l ) (Wes t 202 0 ). The “no evidence” ground set forth by the legislatu re is the only ground upon which a trial court may strike a designation of a responsible third party. See In re Yamaha Golf

- Car Co. , No. 05

- 19

- 00292

- CV, 2019 WL 1512578, at *1 (Tex. App.

– Dallas Apr. 8, 20 19, no pet) (mem op.) ; In re Brokers Logistics,
Ltd

. , 320 S.W.3d 402, 407 (Tex. App.

– El Paso 2010, no pet.) ( “Section 33.004( l ) articulates a single ground for striking a designation of a responsible third party. If the Legislature had
in tended to au thori ze trial courts to strike designations on any other ground it could have easily
indicated that intent in the statute. It did not ”). In the instant case, Davis does not argue that trial court abused its discretion in denying
his motion to strike beca use t here is no evidence that Gill Electric is responsib le for any portion of his injuries. Therefore , we hold that the trial court did not abuse its discretion in overruling
his motion to strike. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 33.004 ( l ).
None theless, Davis raises numerous arguments unrelated to th e standard of proof required by the Legislature to strike a responsible third

- party designation

. He first argues that Section 33.004 provides for designation only for some immune parties but not immu ne employers and, further, that under Section 33.002(a)( 1), responsible third

- party designations only are authorized when there is a cause of action against the designee. See, e.g. , id

. § § 33.002(a)(1) (West 2020 ), 33.00 4 (d). However, followi ng the 2 003 Amendments, the definition of a responsible third party was broadened to include persons who are not subject to the trial court ’ s20 jurisdiction or are immune from liability to the claimant, including a claimant ’ s employer which
is a subscriber t o the w o rker s ’ compensation system. See In re Unitec Elevator Servi ces Co. , 178 S.W.3d 53, 58 n.5 (Tex. App.

– Houston [1st Dist.] 2005, no pet.) ; see also Galbraith Eng ’ g Consultants, Inc. v. Pochucha , 290 S.W.3d 863, 868

– 69 (Tex. 2009) ( defendant may desi gnate

r espon sible third party even though that party possesses defen se to liability, or cannot be formally joined as defendant, or both ) ; New Hampshire Ins. Co. v. Rodriguez , 569 S.W.3d 275, 2999 (Tex. App.

– El Paso 2019, pet. denied ) (noting that follo wing 2003 a mendm ents, even though subscribing employer remained immune f rom suit, employer ’ s negligence could now be placed at issue before jury and thereby (1) proportionally reduce employee ’ s recovery and (2) allow other parties ’ negligence to be viewed in c ontext of al l potential negligence at large )

. Thus, we conclude tha t the interpretation of the unambiguous language 11 of Sections 33.002(a)(1) and 3 3 .004( l ) that Davis proposes is too restrictive

. Davis ’ s Due Process Rights Davis next argues that Gill El ectric ’ s des ignation as a responsible thir d party violated
Davis ’ s su bstantive due process rights under both the United States and Texas constitutions. The Due Process Clause of the Fourteenth Amendment encompasses both substantive and procedural
d

ue proc ess. C ity o f Dallas v. Saucedo

- Falls , 268 S.W.3d 653, 660 (Tex. App.

– Dallas 2008, pet. denied); Byers v. Patterson , 219 S.W.3d 514, 524

– 26 (Tex. App.

– Tyler 2007, no pet.). A violation of substantive due process occurs when the government deprives individ uals of

cons titutionally protected rights by an arbitrary use of powe r. Reynoso v. Dibs US, Inc. , 541 S.W.3d 331, 338 (Tex. App.

– Houston [14th Dist.] 2017, no pet.); Montrose Mgmt. Dist. v. 1620 Hawthorne, Ltd. , 435 S.W.3d 393, 409 (Tex. App.

– Houst on [14t h Dist. ] 201 4, pet. denied). Substantive due process can apply to a legislative act or to certain types of nonlegislative state
action. Gatesco Q.M. Ltd. v. City of Houston , 503 S.W.3d 607, 618 (Tex. App.

– Houston [14th Dist.] 2016, no pet.). A plaintiff challe nging a statute or state action must shoulder the burden to

pr ove a violation of substantive due process. Id. We presume statutes are constitutional. See Patel v. Tex. Dept. of Licensing and Regula tion , 469 S.W.3d 69, 87 (Tex. 2015); Spring
Branc h I.S.D . v. Stamos , 695 S.W.2d 556, 558 (Tex. 1985). Similarly, we p resume a state actor

11 W hen we construe a statute , o ur ultimate purpose must be to give effect to the Legislature ’ s intent. Union Bankers Ins. Co. v. Shelton , 889 S.W.2d 278, 280 (Tex. 1994). We resort to rules of construction only when the statute in question is amb igu ous. See Tex. Water Com m ’ n v. Bru shy Creek Mun . Util. Dist. , 917 S.W.2d 19, 21 (Tex. 1996)

.21 acted in a constitutional manner. Gatesco Q.M. Ltd. , 503 S.W.3d at 618. When neither a suspect
classification nor a fundamental right is involved, we review statutes and ac tions of state actors
under the deferential rational

- basis tes t. See In re Estate of Touring , 775 S.W.2d 39, 42 (Tex. App.

– Houston [14th Dist.] 1989, no pet.); Gatesco Q.M. Ltd. , 503 S.W.3d at 618. Under this test, the claimant must prove that it is not at le ast “fairly debatable” that the statute or conduct
ration ally relates to a legitimate governmental interest. In re Estate of Touring , 775 S.W.2d at 42; see Gatesco Q.M. Ltd. , 503 S.W.3d at 618. On the other hand, a procedural due process
viol ation o ccurs when a government makes decisions without appropriate sa feguards. See
Patterson , 219 S.W.3d at 526. Although Davis frames his argument as pertaining to substantive due process, he makes
no reference to the deferential rational

- basis test, no r does he co ntend in any discernible way that
it is not “ fairly debat able ” that Chapter 33 rationally relates to a legitimate governmental interest. Instead, he contends that the statute lack s important safeguards to prevent the factfinder ’ s assignment of a disp ropor tionate share of responsibility to an immune nonparty, th ereby depriving Davis of a portion of his damages. In response, Southwest points out that Chapter 33 does contain safeguar ds, such as (1) notice to the plaintiff of the defendant ’ s inten tion to assi gn blame to a nonparty, (2) a limitation of time within w hich notice of a nonparty claim must be made, and (3) a requirement that the defendant prove a nonparty contributed to a po rtion of the plaintiff ’ s injuries. See T E X

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 3 3.004

. Southwest also notes that
the Workers ’ Compensati on Act provides an alternate form of relief for recovery against an immune employer that offsets the reduction of a plainti ff ’ s recovery at trial. See T EX

. L ABOR C ODE A NN

. §§ 408.181

– 183 (West 2006 )

. Davis makes no attempt to address these safeguards

or to distinguish them. Based on the arguments in his brief, we cannot conclude that Davis
carried his burden to demonstrate that Chapter 33 violates either his rights of substantive or

pr ocedura l due process. Thus, we must presume the statutes are constitutio nal. See Patel , 469
S.W.3d at 87. Open Courts
Davis further asserts that Gill Electric ’ s designa tion as a responsible third party violated
Davis ’ s rights under the Texas C onstituti on ’ s “o pen court s” provision. The open courts provision of the Texas Cons titution states, “All courts shall be open, and every person for an injury done him , in his lands, goods, person or reputation, shall have remedy by due course of22 law.” T EX

. C ONST

. A NN

. ar t

. I § XII I (West 2007 )

. This provision prohibits legislative bodie s from withdrawing arbitrarily all legal remedies from one having a cause of action well
establish ed and well defined in the common law. See Lebohm v. City of Galveston , 275 S.W.2d
9 5 1, 95 4 (Tex. 1 955). However, the open courts provision does not apply t o statutory claims.
Rose , 801 S.W.2d at 845. Here, as Davis notes in his brief, negligence claims are common law claims. See id. at
845. However, at common law, no personal in jury cau se of act ion survived a victim ’ s death , nor could the victim ’ s heir s sue on behalf of the victim or for their own lo sses due to the tortious act.
See Horizon/CMS Healthcare Corp. v. Auld , 34 S.W.3d 887, 903 (Tex. 2000). Therefore,
because Davis ’ s wrongfu l death a nd survival cause s of action are statutory, the open court ’ s provision does not apply. See id.
Gill Electric ’ s Due Process Rights Lastly, Davis argues that Gill Electric ’ s designation as a responsible third party violated
Gill Electric ’ s proced ural due process rights in its good name and reputation

. Davis argu es that he has standing to bring this chall enge because the same constitutional violation also adversely
affects him. A party ’ s standing to sue is implicit in the concept of subje ct matte r jurisdi ction and is not presumed; rather, it must be proved. See Linegar v. DLA Piper LLP (US) , 495 S.W.3d 276, 279 (Tex. 2016) (citing Tex. Ass ’ n of Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440, 445

– 46 (Tex. 1993) )

. Standing is a question of l aw for t he court to determine, although facts necessary
to the determination may ne ed to be determined by the factfinder. See Linegar , 495 S.W.3d at
279 ; West v. Brenntag Sw., Inc. , 168 S.W.3d 327, 334 (Tex. App.

– Texarkana 2005, pet. denied). The Texas Su preme Co urt has s ummarized general standing principles , in pertinent part, a s follows:

In Texas, the standing doctrine requires a concrete injury to the plaintiff and a real controversy between the parties that will be resolved by the court

. . . . The plaintif f must b e personally injured

— he must plead facts demonstrating that h e, himself (rather than a third party or the public at large) suffered the injury

. . . . [The injury] must be concrete and particularized, actual or imminent, not hypothetical

. . . . [T]he pl a intiff ’ s alleged injury must be fairly traceable to the defe ndant ’ s conduct

. . . . [And] the plaintiff ’ s alleged injury [must] be likely to be redressed by the requested relief.23 Heckman v. Williamson Cty. , 369 S.W.3d 137, 154

– 55 (Tex. 2012) (e mphasis o mitted) (citations omitted). The standing analysis begins w ith a determination of the nature of the wrong being alleged and whether there was a causal connection between a defendant ’ s conduct and the injury caused by the alleged wrong. S ee id. Standing is assessed on a claim

- by

- claim basis. Id.
at 153.
In the instant case , the alleged wrong

–– Gill Electric’s failure to receive notice of its designation and the opportunity to be heard on the matter

–– bears no relation to Davis’s injury

–– t he redu c tion in t he amount of his award by forty percent. Instead, Davis’s i njury is attributable to the Legislature’s decision to amend Chapter 33, which , as set forth previously, has been held
to include the designation of employers as responsible third partie s . Theref ore, we hold that in this instance, Davis lacks standing to raise due process arguments on Gill Electric’s behalf. See
id. Davis’s second cross point is overruled.

C ONCLUSION In our analysis of Davis ’ s first cross point , we determined that the trial co urt ’ s suggestion
of remittitur of the awards of future pecun iary damages to Calli and Grace was appropriate , but
the amou nt suggested was excessive. Therefore , we reverse the trial court ’ s amended judgment
insofar as it awards damages for future pecuniary loss to Calli and Grace , and modify it to reinstate, subjec t to further dispositions below, the jury ’ s award for damages for future pecuniary loss to Calli in the amount of $1,000,000.00 and to Grace in the amount of $750,000.0 0.
Ultimat ely, how ever, we overruled Davis ’ s first cross point. Because the jury ’ s awa rd for future pecuniary loss to Calli and Grace is against the great weight and preponderance of the evidence, we suggest a remittitur of the jury ’ s award of damages fo r future pe cuniary loss to
C alli in the amount of $4 62 ,000.00 and Grace in the amount o f $1 28 ,000.00, which would result in an award for Calli in the amount of $53 8 ,000.00 and for Grace in the amount of $6 22 ,000.00.
If Davis timely files the remittitur in this court within ten (1 0 ) d ays of the date of this opinion, that portion of the trial court ’ s judgment will be reformed and affirmed. See T EX

. R. A PP

. P. 46.3; Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat ’ l Dev

. and Res earch Corp. , 299
S.W.3d 106, 124 (Tex. 20 0 9)

. H owever, i f D avis does not timely file the remittitur, we will revers e that portion of the
trial court ’ s judgment and remand for a new trial on liability and damages. See T EX

. R. A PP

. P.24 44.1(b) (“If the error affects part of, but not all, the mat t er in co ntroversy and that part is separable without unfairness to the parti es, the judgment must be reversed and a new trial ordered only as to the part affected by the error. [But t]he court m ay not order a separate trial solely on unliquidated damages i f liabil ity is co ntested”); see also Estrada v. Dillon 44 S.W.3d 558, 562 (T ex. 2001) (if party files general denial in trial court, plaintiff is put to his or her proof on all issues, including liability; its effect extends to contesting liability in eve n t of rem and on

ap peal; party ’ s failure to present on appeal an additional di screet challenge to liability when party challenges damages does not defeat plain language of Rule 44.1(b) proscribing separate trial on unliquidated damages when liability is con t ested) ; T EX

. R. A PP

. P. 46.5

. Having overruled Southwest ’ s first, second, third, and fourth issues and Davis ’ s second cross point, we affirm the trial court ’ s judgment as modified in all other respects.

B RIAN H OYLE Justice

Opinion delivered March 18, 2021

. Panel consisted of Worthen, C.J., Ho yle, J., and Neeley, J.

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS



## ORDER

MARCH 18 , 2021

NO. 12

- 19

- 0 0384

- CV

THURSTON, OWENS & NEWMAN, L.L.C., D /B/ A SOU THWEST RESTAURANT & BE V ERAGE SOLUTIONS, APPELLANTS/CROSS

- APPELLEES , Appellant s V. JERRY DAVIS, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE

ESTATE OF HAYDEN DAVIS, KAREN DAVIS, AND SUMMER HERNANDEZ, AS NEXT FRIEND OF G.L.D. AND C.N.D., APPELL EES /CROS S

- APPELLANTS , Appellee s

Appeal from the County Court at Law No

. 2
of Gregg Count y, Texas (Tr.Ct.No. 2017

- 2475

- CCL2 ) THIS CAUSE came to be heard on the appellate record and the briefs filed herein, and the same being considered, it is the opinion of this court that there was e rror in the amended judgment of the court below insofar as the trial court’s suggestion of remittitur of the awards of future pecuniary damages to CALLI DAVIS and GRACE DAVIS was appropriate, but the respective amount s of rem itt itur suggested w ere excessiv e.
It is therefore ORDERED, ADJUDGED, and DECREED that that portion of the trial court’s amended judgment awarding damages for future pecuniary loss in the amount of $425,000.00 to CALLI DAVIS and $475,000.00 to GRACE DAV IS be re versed and modified to reinstate, subject to further adjudications below, the jury’s award for damage s for future pecuniary loss to CALLI DAVIS in the amount of $1,000,000.00 and to GRACE DAVIS in the amount of $750,000.00.It is further the opin ion of t his court that there wa s error in the amended judgment as modified insofar as the jury’s award for fut ure pecuniary loss for CALLI DAVIS in the amount of $1,000,000.00 and to GRACE DAVIS in the amount of $750,000.00 is against the great weight and pre ponde rance of the evidence

. It is therefore ORDERED, ADJUDGED, and DECREED that that portion of the tria l court’s amended judgment, as modified, awarding damages for future pecuniary loss in the amount of $1,000,000.00 to CALLI DAVIS and $750,000.00 to GRAC E DAVIS be reversed , an d we suggest a remittitur of the jury’s award of damages for future pecuniary loss to CALLI DAVIS in the amount of $462,000.00 and to GRACE DAVIS in the amount of $128,000.00, which would , thereby, result in an award for fut u re pecuniary loss CALLI DAVIS in the amount of $538,0 00.00 and to GRACE DAVIS in the amount of $622,000.00. If Appellee timely files the remittitur in this court within ten (10) days of the date of this opinion, that portion of the trial court’s judgment wil l be reformed and affirmed

. I f Appellee does not timely file the remittit ur, we will reverse that portion of the trial court’s judgment and remand for a new trial on liability and damages.
The remaining portion of the trial court’s amended judgment is affirmed ; all costs shall be assessed against Ap pellant , THURSTON, OWENS & NEWMAN, L.L.C., D/B/A SOUTHWEST RESTAURANT & BE VERAGE SOLUTIONS , for which let execution issue; and that the decision be certified to the court below for observance.

Brian Ho yle , Justice

. Panel consis ted of Worthen, C.J., H oyle, J., and Neeley, J.