CAUSE NO. 03-14-00698-CV 

________________________________________ 

IN THE THIRD COURT OF APPEALS IN AUSTIN, TEXAS 

________________________________________ 

SHAMARK SMITH LIMITED PARTNERSHIP, ET AL., 

 Appellants, 

v. 

MARTIN LONGORIA, 

 Appellee. 

________________________________________ 

On appeal from the 20th Judicial District Court of Milam County, Texas 

________________________________________ 

APPELLANTS’ BRIEF 

________________________________________ 

Tracy J. Willi 

Texas Bar No. 00784633 

Willi Law Firm, P.C. 

9600 Escarpment Blvd., Suite 745, PMB 34 

Austin, TX 78749-1983 

Tel. (512) 288-3200 

Fax (512) 288-3202 

twilli@willi.com 

ATTORNEY FOR SHAMARK SMITH 

LIMITED PARTNERSHIP, SHARON D. 

MARCUS, AND PAUL J. SMITH 

ORAL ARGUMENT REQUESTED 

ACCEPTED

03-14-00698-CV

4771671

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/6/2015 1:43:30 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/6/2015 1:43:30 PM JEFFREY D. KYLE Clerk
ii 

IDENTITY OF PARTIES AND COUNSEL 

Appellants: 

Sharon D. Marcus, an individual 

Paul J. Smith, an individual 

Shamark Smith Limited Partnership 

Appellate Counsel for Sharon D. Marcus, Paul J. Smith, and Shamark Smith 

Limited Partnership: 

Tracy J. Willi 

Willi Law Firm, P.C. 

9600 Escarpment Blvd., Suite 745, PMB 34 

Austin, TX 78749 

Tel. (512) 288-3200 

Fax (512) 288-3202 

twilli@willi.com 

Trial Court Counsel for Sharon D. Marcus, Paul J. Smith, and Shamark 

Smith Limited Partnership: 

Israel Garcia 

Law Offices of Israel Garcia 

Chulie Professional Building 

926 Chulie Dr. 

San Antonio, TX 78216 

Tel. (210) 225-6666 

Fax (210) 225-2300 

Attorney for Sharon D. Marcus and Shamark Smith Limited Partnership 

Paul J. Smith 

Attorney at Law 

651 S. Walnut, Suite D, #228 

New Braunfels, TX 78130 

Tel. (713) 271-2413 

Fax (713) 237-0820 

Attorney pro se at trial 
iii 

Appellee: 

Martin M. Longoria, an individual 

Appellate Counsel for Martin M. Longoria: 

James David Walker 

P.O. Box 41 

Milano, Texas 76556 

Tel. (512) 636-9520 

Fax (512) 455-7992 

walker@2appeal.com 

Trial Counsel for Martin M. Longoria: 

Mickey Blanks 

Blanks, Greenfield & Rhodes 

P.O. Box 867 

Temple, TX 76501-0867 

Tel. (254) 778-4181 

Fax (254) 778-1280 

W.W. Torrey 

P.O. Drawer 752 

1105 N. Travis 

Cameron, TX 76520 

Tel. (254) 697-3700 

Fax (254) 697-3702 
iv 

TABLE OF CONTENTS 

IDENTITY OF PARTIES AND COUNSEL .......................................................... ii 

INDEX OF AUTHORITIES ................................................................................... vii 

STATEMENT OF THE CASE .................................................................................. 1 

ISSUES PRESENTED .............................................................................................. 2 

STATEMENT OF FACTS ........................................................................................ 3 

I. SUMMARY OF THE CLAIMS. .................................................................. 3

II. LONGORIA FAILED TO PRESENT EVIDENCE OF 

RECOVERABLE DAMAGES. .................................................................... 4

No evidence of injury to reputation. .................................................. 5

No evidence of mental anguish. .......................................................... 6

III. THE RECORD DEMONSTRATES THAT JURORS SHOULD 

HAVE BEEN STRUCK FOR CAUSE. ....................................................... 7

The jury held the Shamark Parties to the higher standard of 

proof of “beyond a reasonable doubt.” ............................................. 7

Jurors refused to find in favor of Shamark Parties’ claims or 

defenses involving theft unless Longoria had been convicted 

of the crime. ........................................................................................ 12

Challenges for cause were denied by the trial court. ..................... 13

Attempted rehabilitation by opposing counsel was 

ineffective. .......................................................................................... 13

Attempted rehabilitation by the Court was ineffective. ................ 14

The Shamark Parties had to use peremptory strikes against 

jurors who should have been struck for cause. Also, three 

jurors who should have been struck for cause were selected 

for the jury. ........................................................................................ 15 
v 

SUMMARY OF THE ARGUMENT ..................................................................... 16 

ARGUMENT ........................................................................................................... 18 

I. THE EVIDENCE IS LEGALLY AND FACTUALLY 

INSUFFICIENT TO SUPPORT ACTUAL DAMAGES. ....................... 18

Standard of review. ........................................................................... 18

Defamation was the gravamen of the complaint and the only 

basis for the jury’s damages finding. Claims for intentional 

infliction of emotional distress and malicious prosecution 

were waived and do not support damages. ..................................... 19

If more than nominal damages are awarded, then injury to 

reputation and mental anguish damages must be supported 

by evidence of actual injury. ............................................................. 20

Damages awarded for injury to reputation are not supported 

by the evidence. .................................................................................. 20

Damages awarded for mental anguish are not supported by 

the evidence. ....................................................................................... 23

II. NO ATTORNEY’S FEES AND NO EXEMPLARY DAMAGES 

MAY BE AWARDED. ................................................................................ 25

III. NO REMAND FOR A DETERMINATION OF NOMINAL 

DAMAGES. .................................................................................................. 28

IV. THE TRIAL COURT ABUSED ITS DISCRETION BY 

REFUSING TO STRIKE JURORS CHALLENGED FOR 

CAUSE. ......................................................................................................... 28

V. CONCLUSION AND PRAYER. ................................................................ 33

CERTIFICATE OF COMPLIANCE ....................................................................... 33 

CERTIFICATE OF FILING AND SERVICE ........................................................ 34 

 
vi 

APPENDIX 

Final Judgment dated August 15, 2014 (CR 1082–85) ................................... App. 1 

Charge of the Court (CR 1031–59) .................................................................. App. 2 

Burbage v. Burbage, 

447 S.W.3d 249 (Tex. 2014) .................................................................. App. 3 

 
vii 

INDEX OF AUTHORITIES 

Cases 

Bentley v. Bunton, 

94 S.W.3d 561 (Tex. 2002) (plurality opinion) ............................................ 20 

Buls v. Fuselier, 

55 S.W.3d 204 (Tex. App.-Texarkana 2001, no pet.) .................................. 30 

Burbage v. Burbage, 

447 S.W.3d 249 (Tex. 2014) ................................................... 1, 20–22, 27, 28 

Cain v. Bain, 

709 S.W.2d 175 (Tex. 1986) ........................................................................ 19 

Hammerly Oaks, Inc. v. Edwards, 

958 S.W.2d 387 (Tex. 1997) ........................................................................ 22

Hancock v. Variyam, 

400 S.W.3d 59 (Tex. 2013) ........................................................ 18, 20, 22, 27 

Hoffman-La Roche, Inc. v. Zeltwanger, 

144 S.W.3d 438 (Tex. 2004) .................................................................. 20, 25 

Holland v. Wal-Mart Stores, Inc., 

1 S.W.3d 91 (Tex. 1999) .............................................................................. 25 

Hyundai Motor Co. v. Vasquez, 

189 S.W.3d 743 (Tex. 2006) .................................................................. 29, 30 

Intercont’l Grp. P’ship v. KB Home Lone Star, L.P., 

295 S.W.3d 650 (Tex. 2009) ........................................................................ 25 

Malone v. Foster, 

977 S.W.2d 562 (Tex. 1998) ........................................................................ 29 

Mancorp, Inc. v. Culpepper, 

802 S.W.2d 227 (Tex. 1990) ........................................................................ 25 

MBM Fin. Corp. v. Woodlands Operating Co., L.P., 

292 S.W.3d 660 (Tex. 2009) ........................................................................ 28
viii 

Murff v. Pass, 

249 S.W.3d 407 (Tex. 2008) ........................................................................ 32 

Parkway Co. v. Woodruff, 

901 S.W.2d 434 (Tex. 1995) .................................................................. 23, 24 

Plas-Tex, Inc. v. U.S. Steel Corp., 

772 S.W.2d 442 (Tex. 1989) ........................................................................ 19 

Saenz v. Fidelity & Guar. Ins., 

925 S.W.2d 607 (Tex. 1996) ........................................................................ 23 

Salinas v. Salinas, 

365 S.W.3d 318 (Tex. 2012) (per curiam) ................................................... 20

Shepherd v. Ledford, 

962 S.W.2d 28 (Tex. 1998) .......................................................................... 29 

Siegler v. Williams, 

658 S.W.2d 236 (Tex. App.—Houston [1st Dist.] 1983, no writ) ............... 27 

Smith v. Dean, 

232 S.W.3d 181 (Tex. App.—Fort Worth 2007, pet. denied) ...................... 30 

Standard Fruit and Vegetable Co. v. Johnson, 

985 S.W.2d 62 (Tex. 1998) .......................................................................... 20 

Sullemon v. U.S. Fid. & Guar. Co., 

734 S.W.2d 10 (Tex. App.—Dallas 1987, no writ) ...................................... 29

Swap Shop v. Fortune, 

365 S.W.2d 151 (Tex. 1963) ........................................................................ 30

Turner v. Turner, 

385 S.W.2d 230 (Tex. 1964) ........................................................................ 25

Waste Management of Texas, Inc. v. Texas Disposal Systems Landfill, Ltd., 

434 S.W.3d 142 (Tex. 2014) ........................................................................ 21 

 
ix 

Statutes and Rules 

TEX. CIV. PRAC. & REM. CODE § 134.005 ................................................................ 26 

TEX. CIV. PRAC. & REM. CODE § 41.004(a) ............................................................ 27 

TEX. GOV’T CODE § 62.105(4) ................................................................................ 29 

TEX. R. CIV. P. 226a ................................................................................................. 29 

TEX. R. CIV. P. 278 ................................................................................................... 19 
STATEMENT OF THE CASE 

Nature of the Case: This case involves competing claims for conversion 

and trespass on one side and intentional infliction of 

emotional distress, criminal malicious prosecution, 

and defamation on the other side. The appeal focuses 

on whether the evidence supports damages for injury 

to reputation and mental anguish and whether jurors 

should have been struck for cause. 

Trial Court: Hon. Jan Patterson, retired judge sitting by 

assignment, 20th Judicial District Court of Milam 

County, Texas. 

 

Trial Court’s 

Disposition:

The trial court entered judgment on the verdict on 

August 15, 2015. CR 1082–85 (Judgment attached as 

App. 1). 
2 

ISSUES PRESENTED 

1. Did the trial court err in its award of damages, attorney’s fees, and exemplary 

damages against Sharon D. Marcus, Paul J. Smith, and Shamark Smith 

Limited Partnership? 

2. Did the trial court err by refusing to strike jurors that had been challenged for 

cause? 
3 

STATEMENT OF FACTS 

I. SUMMARY OF THE CLAIMS. 

This case was brought by Shamark Smith Limited Partnership (“Shamark”) 

against Martin Longoria (“Longoria”) for conversion and trespass. CR 8–10. 

Shamark owns property with a house in rural Milam County. Shamark asserted that 

Longoria trespassed onto Shamark’s property and instructed his workers to 

dismantle the building and to steal various antiques and other items of value, such 

as the tin roof and valuable lumber, from the property. Longoria counterclaimed 

against Shamark, Paul D. Smith, and Sharon D. Marcus (collectively referred to as 

the “Shamark Parties”) for criminal malicious prosecution, intentional infliction of 

emotional distress, and defamation. CR 17–20. The crux of the case is whether 

Longoria had permission to dismantle the house or if Longoria entered without 

consent and stole several items of value from the property. 

The jury found against Shamark on its claims of conversion and trespass. CR 

1034, 1036 (Charge of the Court attached as App. 2). The jury found in favor of 

Longoria on his claims of criminal malicious prosecution, intentional infliction of 

emotional distress, and defamation. CR 1045 (Question 12, intentional infliction of 

emotional distress); CR 1046 (Question 13, criminal malicious prosecution); and CR 

1047–50 (Question 14, 15, 16, and 17, defamation). The jury awarded damages 

based solely upon its finding of a published statement in Question 14 that, “Martin 
4 

Longoria had stolen components of or contents inside the Old Sneed Home.” CR 

1047, 1052. While the damages question was pre-conditioned on findings of “yes” 

to Questions 12 (malicious prosecution), 13 (intentional infliction of emotional 

distress), or 18 (clear and convincing evidence of falseness), Question 19 on 

damages requested the jury to determine damages linked directly and solely to 

Question 14, the finding that the statement of theft was published. Id. 

II. LONGORIA FAILED TO PRESENT EVIDENCE OF 

RECOVERABLE DAMAGES. 

The jury awarded damages for injury to reputation in the past in the amount 

of $275,000 against Smith, Marcus, and Shamark divided as $90,000, $90,000 and 

$95,000 respectively. CR 1052. The jury awarded damages for injury to reputation 

in the future in the amount of $40,000 against Smith, Marcus, and Shamark divided 

as $10,000, $10,000, and $20,000 respectively. CR 1052. The jury further awarded 

mental anguish damages in the past of $75,000 against Smith, Marcus, and Shamark 

divided as $20,000, $20,000, and $35,000 respectively. CR 1053. 

Question 8 requested the jury to determine whether Longoria or any of his 

agents committed theft of property valued at $20,000 or greater. CR 1041. The jury 

was instructed not to answer the question if it did not answer “yes” to Question 1. 

Since the answer to Question 1 was “no” the jury did not answer Question 8. Id. 

Question 11 was conditioned to be answered only if there was a “no” answer to 

Question 8. Nonetheless, in response to Question 11, the jury awarded attorney’s 
5 

fees to Longoria in the amount of $163,000 for representation in the trial court, 

$30,000 for representation through appeal to the Court of Appeals, and $20,000 for 

representation through appeal to the Supreme Court of Texas. CR. 1044.1

 Question 

11 was not based upon any other particular finding in the jury charge—it was not 

linked to any liability finding. Id. The attorney’s fees cannot be based upon the 

answer to Question 8 on “theft” because the jury did not answer Question 8. 

The jury further awarded exemplary damages for the conduct found in 

Question 20 (the harm to Longoria resulted from malice) or 21 (the harm to Longoria 

resulted from fraud) against Smith, Marcus, and Shamark in the amount of $100,000 

divided as $30,000, $30,000, and $40,000 respectively. CR 1056. 

Several legal arguments will be addressed to challenge the awards of 

exemplary damages and attorney’s fees, but very basically, without evidence of 

actual damages, exemplary damages and attorney’s fees are not recoverable. 

No evidence of injury to reputation. 

Counsel for Longoria made it clear during trial that, “We are not asking for, 

nor are we seeking in the jury charge to recover any economic damages.” RR Vol. 

 

1

 The jury understood it was not requested to answer Question 11 since it did not 

answer Question 8 affirmatively or negatively. Nonetheless, when the jury sent out 

a question to the judge on whether they should answer Question 11, the judge 

instructed the jury to answer Question 11, but did not instruct the jury to answer 

Question 8. Supp CR 42. There is no legal basis for the jury to have answered 

Question 11 in this jury charge. 
6 

8, 203. Longoria testified that the criminal case was dismissed and he was not even 

arrested – he simply turned himself in. RR Vol. 8, 202. Longoria testified that he 

cannot identify one person who told him that they would not hire him for reasons 

relating to the theft accusation or arrest. RR Vol. 8, 202. No one has ever told him 

that they would not hire him because of the arrest. No one has ever told him that his 

reputation was damaged in any way. RR Vol. 8, 213–14. 

No evidence of mental anguish. 

Longoria has never been to any medical doctors, mental healthcare 

professionals, psychologists, therapists, or any psychiatric care for any kind of 

emotional distress. RR Vol. 8, 214. At best, his testimony was that he was merely 

worried about what could happen to him if he was found guilty. RR Vol. 8, 214–15. 

But the criminal action got no further than the grand jury, where it was no-billed—

Longoria was never indicted. RR Vol. 8, 215. He complained of emotional distress 

from the financial concerns, but there was no evidence of financial hardship, and 

there was evidence that Longoria had substantial real property interests in Mexico. 

RR Vol. 8, 215. The level of emotional distress did not cause him any illness or 

physical symptoms. RR Vol. 8, 215. He testified that he is in a bad mood 

sometimes, but he can still get up and do his daily activities and it did not disrupt 

those daily activities. RR Vol. 8, 216. 
7 

III. THE RECORD DEMONSTRATES THAT JURORS SHOULD HAVE 

BEEN STRUCK FOR CAUSE. 

The jury held the Shamark Parties to the higher standard of proof of 

“beyond a reasonable doubt.” 

The record demonstrates that jurors 6, 8, 9, 10, 12, 13, 14, 24, 26, 31, 32, 33, 

47, 49, 50, and 51 should have been struck for cause because they would require the 

Shamark Parties to prove that Longoria committed theft beyond a reasonable doubt 

rather than by a preponderance of the evidence. 

MR. SMITH: Well, I don’t mean to say it’s nothing, okay. What I 

mean is if it will help, we’re not going to be sentencing anyone to death. 

VENIREPERSON: No, but you’ve got a man that’s got to live the rest 

of his life of being accused of something that he may not have done. 

MR. SMITH: And if he did it and you determine that he did do it, could 

you award money? 

VENIREPERSON: Would -- run that by me again. 

MR. SMITH: If the person that is accused is proved to your satisfaction 

that he did it and the people that lost what they lost prove how much it 

was worth, could you award money? 

VENIREPERSON: Yeah, but it’s going to be -- have to be beyond a 

shadow of a doubt. 

MR. SMITH: And if the Judge instructs you that the burden of proof 

is not beyond shadow of a doubt but by a preponderance of the 

evidence, likely -- 

VENIREPERSON: (Moving head side to side.) 

MR. SMITH: Can’t do it. Okay, that’s fair enough. Juror number... 

VENIREPERSON: 50. 
8 

MR. SMITH: Now, I can cut to the chase. Does anyone else feel the 

same way, that the burden of proof must be beyond a reasonable doubt 

or a shadow of a doubt? Number 32. Hold on. Let me get -- and I need 

to make sure, okay. Please hold your cards up. Number 6, number 9, 

number 11, number 12, number 13, number 14, 16, 32, 31, 30, 28, 26, 

24, 23, 22, 21, 20, 17, 33, 34, 35, 36, 38, 40, 41, 42, 43, 47, 48, 49 and 

50. And you’re number 29? I don’t believe I got it. All right. Second 

part. How strongly do you feel that way? What I mean by this is: I 

expect the Judge to give a different instruction, okay. If your feeling is 

so strong that it won't matter to you what the Judge says as far as burden 

of proof, please keep your hand raised or your card raised. If you can 

leave room for the possibility -- and that’s juror number 50, number 24, 

number 9 and 50 and -- 

VENIREPERSON: Repeat the question, please. 

MR. SMITH: There were a number of us that said beyond a reasonable 

doubt, a shadow of a doubt to use Perry Mason. I believe -- I think the 

other side believes that the burden of proof instruction will be different 

than from the Judge. We believe as we believe and that’s okay. But in 

order to be a fair juror to both sides, you have to be able to follow the 

law. And if it is such that regardless of what anyone says, it’s still 

beyond a reasonable doubt or a shadow of a doubt, that’s okay. 

VENIREPERSON: But why is that okay? If – you’re either holding 

the smoking gun or you’re not. 

MR. SMITH: Because the law is as the Judge will instruct you, okay. 

Not every case is a criminal case like on TV. The levels -- let me give 

you an example. And this is the best example I can give. In a football 

game, if the ball advances to the 50 yard line and one inch, in a civil 

case, the side that got the ball to the 50 yard line and one inch wins. If 

in a criminal case, which this is not, you’ve got to get into the end zone 

to win, that’s beyond a reasonable doubt. Does that help? It’s the only 

analogy I know. 

VENIREPERSON: They don’t play football that way, though. This is 

Texas. You have got to make it to the end zone to make a point. 

MR. SMITH: What would you use? 
9 

VENIREPERSON: It sounds like a rounding game to me, the closest 

one to the winning side wins. 

MR. SMITH: I’m sorry? 

VENIREPERSON: It sounds like a rounding game, the closest within 

five wins. That ain’t fair. 

MR. SMITH: And that’s okay if you don't believe that or can't follow 

that. That’s perfectly fine. It means in this particular type of case, that 

you would not be a fair juror to either side. It doesn't mean you wouldn't 

be a great juror in, say, a criminal case or a child custody case where 

the burdens are different. That's all I'm trying to get at. And I appreciate 

the brutal honesty of people, so many people holding their cards up. It's 

real important for us, it’s important for them, it’s important for the 

Judge, it’s important for justice. Because if the – the mistake or the 

belief that we have to prove all beyond every shadow of a doubt is not 

the law, justice has failed. That’s not what this courtroom is about and 

it's okay to believe as you believe. So how many feel so strongly that 

no matter what is told, it still has to be beyond a shadow of a doubt to 

award money? Would you please raise your cards. And, Judge, I am 

not going to make notes. I’m sorry, folks. I know -- and this is the 

most perfect jury I have ever seen because there’s brutal honesty here. 

Do you realize how important that is in justice? It is so brutally honest 

and so important that people tell their truth no matter what and I 

appreciate you, sir. It’s okay, and I respect that. Have we got all the 

numbers? 

MR. GARCIA: Let me double check real quick. 

MR. SMITH: I’m sorry. One more time. I’m sorry but this is the crux 

of the case. Are you in, too? Got them? 

MR. GARCIA: Got them. 

MR. SMITH: Thank you all so much. Now, having answered that 

question, I can begin to understand why when you honestly tell me you 

would not be a good juror, it’s okay. I accept that. In fact, I honor that 

and every one of you. I honor that, telling your truth no matter what. 

So there’s some people that are left. Who did not raise their cards? 
10 

Could I see those that did not raise their cards? Judge, may we 

approach? 

(Bench conference held outside the hearing of the jury panel.) 

MR. SMITH: Your Honor, I don’t want to waste a lot of the Court’s 

time or the jury’s time. I believe that that is the essence of the burden 

of proof is an instruction and I went through it very clearly. I counted 

the numbers left, and I believe there were 13 who could consider other 

than beyond a reasonable doubt or a shadow of a doubt. If we struck 

six, we would not have enough. I would respectfully request at this 

time, we move for a mistrial and that we re-impanel and these people 

can go home. 

MR. BLANKS: It’s all how he asked the question and he got a response 

to a question that I think the jury didn’t understand; otherwise, if he was 

picking juries here, we would never have a jury impaneled in Milam 

County in civil cases. So his time is up; I think he should sit down and 

I should be allowed to clarify. 

THE COURT: Whether you misspoke or not, you also said that the 

instruction would be different from that that the Judge gives you, that 

the law would be different than that that that the Judge gives you, and I 

don’t know exactly what you meant by that. But I think it is in the way 

you asked the question. You need to -- we may be able to handle this 

in camera with individual jurors but you haven’t accomplished your 

mission yet. So I am going to deny the motion. You have nine minutes. 

MR. SMITH: May I ask them one last thing? What -- particularly -- 

the Court -- I mean, if it’s -- the panel -- 

MR. TORREY: It’s standard of proof, not burden of proof. 

THE COURT: And you haven’t explained what the burden of proof is, 

you haven’t explained preponderance of the evidence and suggested 

that – one person said it would have to be beyond a shadow of a doubt 

and then you said -- you elicited anyone else from the juror’s answer, 

so I don’t think you’ve accomplished your striking for cause. 

MR. SMITH: Okay. I’ll go into -- 
11 

MR. TORREY: I think that your voir dire is mostly incoherent, which 

adds to their -- 

THE COURT: You know, I -- 

COURT REPORTER: I’m having a hard time hearing. 

THE COURT: You have nine minutes to complete and then you may 

make your -- any appropriate motion at the conclusion of the whole -- 

MR. SMITH: I didn’t -- 

THE COURT: -- voir dire. Please continue. 

MR. SMITH: Sure. 

(Open court, and all counsel and parties present.) 

Burden of proof. The term “preponderance of the evidence,” which I 

believe that the Judge will instruct you in this case to be the guiding 

process by which you decide your verdict means the greater weight of 

credible evidence admitted in this case. A preponderance of evidence 

is not measured by the number of witnesses or the number of documents 

admitted into evidence. For a fact to be proved by a preponderance of 

the evidence, you must find the fact is more likely true than not. Do I 

-- does everybody understand that? 

(No response.) 

So earlier I hope that I didn’t misspeak. I may have. This case is on 

preponderance of the evidence. It doesn’t mean 100 percent or beyond 

a reasonable doubt and I gave a horrible football analogy, okay. Now, 

having given the definition that I believe the Judge will give you, can 

you decide this case on preponderance of the evidence, or are you going 

to require a different, higher burden of proof for us as the people 

bringing the initial lawsuit? Does that help any? So can you please 

raise your hand if you require a higher burden of proof, a number. 

Okay. And I want to get these. Number 6, 8, 9, 10, 12, 13, 14, 32, 31, 

26, 24, 33, 49, 50 and 51 and 47. Did I get you? 47. That’s what I need 

and it’s okay. It’s okay. 

RR Vol. 4, 95–103. 
12 

Jurors refused to find in favor of Shamark Parties’ claims or defenses 

involving theft unless Longoria had been convicted of the crime. 

 Jurors 8, 9, 12, 13, 31, 24, 26, and 49 were also disqualified as a matter of 

law because they required there to be a criminal conviction to award damages in a 

civil case involving theft. 

MR. SMITH: 26. Three things about yourself. 

VENIREPERSON: I moved here from McCulloch County two years 

ago and I have a place out and a few cows and I just work and mind my 

own business. I don’t really know anybody, don’t -- I don’t know that 

I could make an honest assumption, I guess, or something against 

somebody if I really knew that they did it. I can feel both sides. 

MR. SMITH: Sure. 

VENIREPERSON: But I don’t know. If they didn’t convict him, I 

guess on the criminal part, then -- 

MR. SMITH: Is that okay? Do you require a conviction on a criminal 

part to get a civil -- 

VENIREPERSON: It just looks like if he did it and you knew that he 

did it, that he would have been convicted. 

MR. SMITH: Let me ask this, the last question I have. Would everyone 

or anyone require a criminal conviction in order to award money in a 

civil case for theft? Can I see the numbers of those people? Eight, 9, 

12, 13, 31, 26 and 24 and 49. 

THE COURT: Thank you, Mr. Smith. 

MR. SMITH: Thank you all for sharing. 

RR Vol. 4, 108. 
13 

Challenges for cause were denied by the trial court. 

The trial court denied the Shamark Parties’ challenges for cause as to 6, 8, 9, 

10, 12, 13, 14, 24, 26, 31, 32, 33, 47, 49, 50, and 51 based upon the jurors’ responses 

requiring proof beyond a reasonable doubt, as opposed to proof by a preponderance 

of the evidence. CR 136–42. The trial court denied the Shamark Parties’ challenges 

for cause as to jurors 8, 9, 12, 13, 24, 26, 31, and 49 based upon the jurors’ responses 

requiring a criminal conviction before finding in favor of the Shamark Parties. CR 

136–42. The trial court denied the Shamark Parties’ request for more preemptory 

strikes. CR 142. 

Attempted rehabilitation by opposing counsel was ineffective. 

Mr. Blanks attempted to rehabilitate the jurors who testified that they could 

not apply the preponderance of the evidence to the Shamark Parties’ claim and 

defense that Longoria committed a theft of the items at the property. However, the 

rehabilitation was not specific to any juror and was not specific to the issue of 

applying the proper burden of proof to the issue of theft. 

MR. BLANKS: [...] The question is -- here we go: Can you listen to 

the evidence without prejudging either side, understanding that both 

sides are saying the other side did something wrong? And can you use 

your life’s experiences, your common sense? Can you use those things 

to sift through the evidence and simply make a decision about what is 

more likely than not to have happened? And that is really the standard, 

more likely than not. How can we resolve disputes between people in 

this county? That’s the standard, by what is more likely than not. And 

if you can’t reach that decision, if you can’t do that, then you say there’s 

not enough evidence one way or the other, I’m not going to do it. 
14 

Burden of proof is your common sense applied to the facts of this case 

and you say it's more likely than not Martin or these folks are telling 

the truth. When you head out of here, you’re going to do that in every 

other venue and every other place in your life. Is there a reason you 

can’t do it here? If you can’t do it here, raise your card. 

(No response.) 

RR Vol. 4 127–28. 

Attempted rehabilitation by the Court was ineffective. 

After the Court denied the challenges for cause, the trial court made a 

perfunctory attempt to rehabilitate the jurors on whether they could abide by the 

Court’s instruction to apply the preponderance of the evidence standard. There was 

no attempt to discuss the matter individually with any juror and no direct questioning 

of any juror. 

THE COURT: All right. One last question for you before we take our 

final break, which is not a lunch break yet, is: You have heard 

discussion and questions concerning both civil and criminal cases, and 

as I advised you at the beginning of this case, this is a civil case, and I 

will advise you at the conclusion of the case and the lawyers would -- 

may argue between now and then about the preponderance of the 

evidence, which is the standard of proof in a civil case. You will also 

hear some testimony about a criminal matter in this case, which has a 

different burden of proof and you’ve also heard some questioning about 

that during the voir dire. Is there anyone here who has an understanding 

of either a civil or criminal law that will not allow them to follow the 

instructions that I as the Court give you concerning preponderance of 

the evidence, how that burden of proof is allocated between the parties 

and how it is shown? You are the judges of the facts and you will follow 

the law as I gave it to you. Is there anyone here who has -- who thinks 

they will be unable to follow the law as I will give it to you at the 

conclusion of this case? 

(No response.) 
15 

THE COURT: Absolutely anyone for any reason? 

(No response.) 

Thank you, ladies and gentlemen. At this point, I see no hands and I 

am going to -- I am going to ask that you take a final 10-minute break, 

not for lunch, but you will be able to leave after that, both for a lunch 

break and for many of you permanently. So do hold onto your numbers 

for now and please be back in your seats at exactly 2:00 o’clock. Thank 

you. 

RR Vol. 4, 145–46. 

The Shamark Parties had to use peremptory strikes against jurors 

who should have been struck for cause. Also, three jurors who should 

have been struck for cause were selected for the jury. 

The 12 member jury consisted of the following jurors from the panel: 1, 2, 4, 

7, 8, 10, 11, 13, 16, 19, 21, 22, and alternate 25. RR Vol. 4, 147; Supp. CR 20–28.2

 

Jurors 8, 10, and 13 on the jury panel had been challenged for cause because they 

would require proof beyond a reasonable doubt from the Shamark Parties, rather 

than proof by a preponderance of the evidence, on whether Longoria had stolen 

property. Also, jurors 8 and 13 on the jury had been challenged for cause because 

 

2

 The Clerk’s First Supplemental Record is sealed because it contains the jurors’ 

personal information. The jury cards appear at Supp. CR 20–28 and indicate in the 

upper right-hand corner the handwritten juror number with a circle around it. The 

handwritten jury number is the number that was used during voir dire. The printed 

number on the upper right-hand corner corresponds to the original jury numbers 

before the jury was shuffled as requested by Longoria’s counsel. RR Vol. 4, 32. 

The original printed numbers on the jury cards correspond to the randomly assigned 

numbers shown on the computer generated jury list. Supp. CR 19. 
16 

they would require proof of a criminal conviction before they would find in favor of 

the Shamark Parties on whether Longoria had stolen property. 

The Shamark Parties used seven preemptory strikes (six strikes plus one more 

for the alternate). The Shamark Parties used their preemptory strikes on the 

following jurors: 6, 9, 12, 14, 20, 24, and 26 (alternate). Supp. CR 38. Of the jurors 

struck by the Shamark Parties, the following had been challenged for cause for their 

inability to apply the preponderance of the evidence standard of proof: 6, 9, 12, 14, 

24, and 26. Of the jurors struck by the Shamark Parties, the following had been 

challenged for cause for their inability to find in favor of the Shamark Parties on 

whether Longoria had stolen property without proof of a criminal conviction: 9, 12, 

24, and 26. In other words, the Shamark Parties had to use five out of six of their 

preemptory strikes to strike jurors who should have been disqualified from jury 

service in this case. Supp. CR 38. Even after exercising their preemptory strikes, 

three jurors remained on the jury who had been challenged for cause—jurors 8, 10 

and 13. Supp. CR 20–28. There was no chance of the Shamark Parties succeeding 

in this lawsuit with the jury stacked against them. 

SUMMARY OF THE ARGUMENT 

There is no evidence of damages to support the judgment against the Shamark 

Parties. Due to the legal insufficiency of the evidence in support of Longoria’s 
17 

claims for injury to reputation and mental anguish, the Shamark Parties request this 

Court to render judgment that Longoria take nothing on his claims. 

This was a highly contentious case. The Shamark Parties insisted that 

Longoria committed theft and therefore Shamark’s attempt to have him criminally 

prosecuted for that theft was justified. Longoria insisted he did not commit a theft 

and had permission to be on the property and removing items. The assertion of theft 

was a central issue on this case in both the pursuit of claims against Longoria to 

recover damages and in the defense of Longoria’s counterclaims for malicious 

prosecution, intentional infliction of emotional distress, and defamation. The jury 

required the Shamark Parties to prove theft, whether as an affirmative claim or as a 

defense, beyond a reasonable doubt instead of by a preponderance of the evidence. 

The jury further required the Shamark Parties to prove that Longoria had been 

convicted of that crime before they would find in favor of the Shamark Parties in 

this civil case. The jury was stacked against the Shamark Parties. If this case is not 

rendered in favor of the Shamark Parties so that Longoria takes nothing on his claims 

because of lack of evidence of damages, then the entire case should be reversed for 

a new trial for factually insufficient evidence on damages and because the jury was 

improperly empaneled. 
18 

ARGUMENT 

I. THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT 

TO SUPPORT ACTUAL DAMAGES. 

Injury to reputation and mental anguish were the only damages requested by 

Longoria in this case. CR 1052–53. Longoria failed to offer any evidence at trial 

that his reputation was damaged or that he experienced a substantial disruption in 

his daily routine or a high degree of mental pain and distress due to the alleged 

published statement. See Hancock v. Variyam, 400 S.W.3d 59, 68 (Tex. 2013). 

Standard of review. 

On an issue where the opposing party bears the burden of proof, a legal 

sufficiency challenge to an adverse finding is sustained if the evidence demonstrates 

a complete absence of a vital fact, or if the evidence offered is no more than a 

scintilla. Burbage v. Burbage, 447 S.W.3 249, 259 (Tex. 2014) (attached as App. 3) 

(addressing evidence necessary to prove compensable injury to reputation). More 

than a scintilla exists when the evidence would enable reasonable and fair-minded 

people to reach different conclusions. Id. Evidence that creates a mere surmise or 

suspicion of a vital fact as, in legal effect, constitutes no evidence. Id. The evidence 

is considered in the light most favorable to the judgment, “crediting favorable 

evidence if reasonable jurors could, and disregarding contrary evidence unless 

reasonable jurors could not.” Id. 
19 

In reviewing a factual sufficiency challenge, this Court considers and weighs 

all of the evidence supporting and contradicting the challenged finding and sets aside 

the finding only if the evidence is so weak as to make the finding clearly wrong and 

manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); see Plas-Tex, 

Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). 

Defamation was the gravamen of the complaint and the only basis for 

the jury’s damages finding. Claims for intentional infliction of 

emotional distress and malicious prosecution were waived and do not 

support damages. 

The jury question on damages was directly linked only to the publication of 

alleged statement, “Martin Longoria had stolen components of or contents inside the 

Old Sneed Home.” CR 1052–53 (Question 19 “What sum of money, if paid now in 

cash, would fairly and reasonably compensate Martin Longoria for his injuries, if 

any, that were proximately caused by the statement in Question 14?”) Thus, 

damages were requested only for the alleged publication of the statement found in 

Question 14, not for the jury’s findings of intentional infliction of emotional distress 

or for malicious prosecution which were submitted in Questions 12 and 13. CR 

1052. Longoria waived his right to recover damages under any theory except 

defamation. See TEX.R.CIV. P. 278 (failure to submit a jury question in substantially 

correct form waives the complaint). 

Further, where the gravamen of a complaint is really another tort (such as 

defamation), intentional infliction of emotional distress is not an available cause of 
20 

action. Hoffman-La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004). 

The intentional infliction of emotional distress was, first and foremost, a “gap-filler” 

tort, judicially created for the limited purpose of allowing recovery in those rare 

instances in which a defendant intentionally inflicts severe emotional distress in a 

manner so unusual that the victim has no other recognized theory of redress. 

Standard Fruit and Vegetable Co. v. Johnson, 985 S.W.2d 62, 68 (Tex. 1998). 

Nonetheless, under any theory of recovery, there is no evidence of injury to 

reputation or mental anguish. 

If more than nominal damages are awarded, then injury to reputation 

and mental anguish damages must be supported by evidence of actual 

injury. 

Texas law presumes that defamatory per se statements cause reputational 

harm and entitle a plaintiff to general damages such as loss of reputation and mental 

anguish. Burbage, 447 S.W.3d at 256 (citing Bentley v. Bunton, 94 S.W.3d 561, 604 

(Tex. 2002) (plurality opinion)). But this presumption yields only nominal damages. 

Id. (citing Salinas v. Salinas, 365 S.W.3d 318, 320 (Tex. 2012) (per curiam)). 

Beyond nominal damages, the appellate court reviews presumed damages for 

evidentiary support. Id. (citing Hancock, 400 S.W.3d at 66.)

Damages awarded for injury to reputation are not supported by the 

evidence. 

The Texas Supreme Court recently clarified the quality of evidence required 

to demonstrate a compensable injury to reputation. Burbage, 447 S.W.3d at 259–
21 

63. In Burbage, the Court determined that the plaintiff’s ballpark estimate of the 

Burbage Funeral Home’s value does not equate to evidence of actual damages for 

injury to the business’s reputation. The record contained only speculative evidence 

that the value, if established, “would likely be lost.” Id. at 261. Questioned whether 

the defamation could destroy the funeral home’s reputation, the plaintiff said: 

“[P]otentially. In my opinion.” Id. The plaintiff said the value would be “zero” only 

when questioned on what would happen if the funeral home was “run out of 

business.” Id. The plaintiff’s brother, testified that, in a small community, such 

allegations “can ruin that entire business.” The Court noted at a theoretical 

possibility, however, is a far cry from a likely event. Id. 

The Burbage opinion referred to the example case of Waste Management of 

Texas, Inc. v. Texas Disposal Systems Landfill, Ltd., 434 S.W.3d 142 (Tex. 2014). 

In that case, the key evidence of injury to Texas Disposal Systems’ reputation was 

its CEO’s testimony estimating the value of its reputation at $10 million, and three 

exhibits purportedly supported that testimony. Burbage, 447 S.W.3d at 260 (citing 

Waste Management, 434 S.W.3d at 160.) The exhibits estimated lost profits and 

evidenced a decrease in “base business.” Id. First, the Court held that damages such 

as lost profits “are not the sort of general damages that necessarily flow from such a 

defamatory publication.” Id. Then, the Court stated that the “evidence must support 
22 

the amount awarded by the jury; it must not be an ‘indicator’ that supports the 

estimates offered by the corporate executive.” Id. 

The Burbage opinion also referred to the example case of Hancock v. 

Variyam, wherein a doctor claimed that the submission of a defamatory letter to an 

accrediting body, which later denied the doctor accreditation, provided evidence of 

reputation damages. Id. at 262 (citing Hancock, 400 S.W.3d at 70). The Texas 

Supreme Court in Hancock held that “a jury may not reasonably infer an ultimate 

fact from ‘meager circumstantial evidence which could give rise to any number of 

inferences, none more probable than another.’” Id. at 70-71 (quoting Hammerly 

Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex. 1997)). Similarly, in Burbage, 

the Court determined that the jury cannot reasonably infer that defamation caused 

the cancellations of business when the cancellations could have occurred for any 

number of reasons. Indeed, the plaintiff in Burbage admitted that he did not ask why 

the customers cancelled, only that he was “afraid” it was because of accusations. Id. 

Suggestions of community awareness and other vague testimony about the impact 

of the alleged defamatory statement does not support the award of compensatory 

damages. Id. 

Here, counsel for Longoria made it clear during trial that, “We are not asking 

for, nor are we seeking in the jury charge to recover any economic damages.” RR 

Vol. 8, 203. Longoria testified that he cannot identify one person who told him that 
23 

they would not hire him for reasons relating to the theft accusation or arrest. RR 

Vol. 8, 202. No one has ever told him that they would not hire him because of the 

arrest. No one has ever told him that his reputation was damaged in any way. RR 

Vol. 8, 213–14. Here, the evidence on damages for injury to reputation does not 

withstand the scrutiny of the Burbage analysis. There is simply no evidence of 

compensable injury to reputation and no evidence to support the amount of $275,000 

in injury to reputation damages in the past and $40,000 of injury to reputation 

damages in the future. 

Damages awarded for mental anguish are not supported by the 

evidence. 

Mental anguish damages cannot not 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’”. Saenz v. Fidelity & Guar. Ins., 925 S.W.2d 607, 614 

(Tex. 1996) (citing Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995)). 

Not only must there be evidence of the existence of compensable mental 

anguish, there must also be some evidence to justify the amount awarded. Id. While 

the impossibility of any exact evaluation of mental anguish requires that juries be 

given a measure of discretion in finding damages, that discretion is limited. Juries 

cannot simply pick a number and put it in the blank. Id. They must find an amount 
24 

that, in the standard language of the jury charge, “would fairly and reasonably 

compensate” for the loss. Compensation can only be for mental anguish that causes 

“substantial disruption in... daily routine” or “a high degree of mental pain and 

distress”. Id. (citing Parkway, 901 S.W.2d at 444). There must be evidence that the 

amount found is fair and reasonable compensation, just as there must be evidence to 

support any other jury finding. Id. Reasonable compensation is no easier to 

determine than reasonable behavior—often it may be harder—but the law requires 

factfinders to determine both. And the law requires appellate courts to conduct a 

meaningful evidentiary review of those determinations. Id. 

In this case, there is no evidence of the existence of compensable mental 

anguish and there is no evidence to justify the amount awarded. In Saenz, the 

plaintiff testified that she worried a lot, that her husband was already working two 

jobs, and she was worried that they were going to lose their house, and she knew she 

could not afford the medical bills that were coming in. Id. at 614. That testimony 

was not sufficient to support the existence of compensable mental anguish or that 

$250,000 would be fair and reasonable compensation. Id. Similarly here, Longoria 

testified of emotional distress from the financial concerns, but there was no evidence 

of financial hardship, and there was evidence that Longoria had substantial real 

property interests in Mexico. RR Vol. 8, 215. The level of emotional distress did 

not cause him any illness or physical symptoms. RR Vol. 8, 215. He testified that 
25 

he is in a bad mood sometimes, but he can still get up and do his daily activities and 

it did not disrupt those daily activities. RR Vol. 8, 216. There is simply no evidence 

of compensable mental anguish and no evidence to support the amount of $75,000 

in mental anguish damages. 

II. NO ATTORNEY’S FEES AND NO EXEMPLARY DAMAGES MAY 

BE AWARDED. 

The general rule in Texas is that each party is responsible for his or her own 

attorney’s fees. Turner v. Turner, 385 S.W.2d 230, 233 (Tex. 1964). Texas follows 

the “American Rule” that “litigants’ attorney’s fees are recoverable only if 

authorized by statute or by a contract between the parties.” Intercont’l Grp. P’ship 

v. KB Home Lone Star, L.P., 295 S.W.3d 650, 653 (Tex. 2009). Even for causes of 

action for which attorney’s fees are potentially recoverable, there can be no award 

of attorney’s fees without the award of actual damages. See Mancorp, Inc. v. 

Culpepper, 802 S.W.2d 227, 230 (Tex. 1990); Holland v. Wal-Mart Stores, Inc., 1 

S.W.3d 91, 94 (Tex. 1999). Regardless of the cause of action forming the basis for 

attorney’s fees, “the bottom line is the same: As there was no award to the client, 

there can be no attorney’s fee award either.” Intercont’l Grp. P’ship, 295 S.W.3d at 

662. A suit for intentional infliction of emotional distress does not support an award 

of attorney’s fees. See Hoffmann-La Roche Inc., 144 S.W.3d at 446.

Statutory provisions for the recovery of attorney fees are penal in nature, and 

must be strictly construed. Id. Longoria did not request the jury to answer Question 
26 

8 on theft with an affirmative or negative finding. CR 1041. Question 8 was left 

unanswered by the jury and the issue was waived by Longoria. Id.; TEX. R. CIV. P. 

278. Thus, Longoria cannot rely upon the statutory provision involving theft as a 

basis for the award of attorney’s fees. See TEX. CIV. PRAC. & REM. CODE § 134.005. 

The tort causes of action for intentional infliction of emotional distress, defamation, 

and malicious prosecution do not support the award of attorney’s fees as a matter of 

law. Further, even if attorney’s fees were somehow recoverable without actual 

damages, Longoria’s counsel presented no evidence regarding attorneys’ fees other 

than by stating that he had a one-third contingent fee agreement and he did not 

apportion the fees between the causes of action on which attorney’s fees are 

recoverable or delineate what factors were considered to establish reasonableness. 

RR Vol. 8, 277. In this case, Longoria’s counsel did not indicate how many hours 

were spent in the aggregate or were devoted to any particular task or category of 

tasks. Longoria presented no time records or other documentary evidence. Nor did 

Longoria’s counsel testify based on their recollection of such records. The court 

could not discern from the evidence how many hours each of the tasks required and 

whether that time was reasonable. Without at least some indication of the time spent 

on various parts of the case, a court has little basis upon which to conduct a 

meaningful review of the fee award. Longoria’s counsel simply suggested that the 

jury should add one-third additional to whatever they award Longoria. Id. Further, 
27 

Longoria’s counsel made no attempt to justify appellate attorney’s fees. The jury’s 

award of attorney’s fees does not correspond to Longoria’s counsel’s testimony and 

is not recoverable in this case. 

Moreover, the judgment does not award appellate attorney’s fees based upon 

an unsuccessful appeal. Instead, the judgment includes appellate attorney’s fees 

automatically and then gives a “credit” of $50,000 if the judgment is not appealed, 

to the court of appeals and another “credit” of $20,000 if the judgment is not 

appealed to the Supreme Court. CR 1084. This unconditional award of appellate 

attorney’s fees is improper. Siegler v. Williams, 658 S.W.2d 236, 241 (Tex. App.—

Houston [1st Dist.] 1983, no writ). There must be evidence of the reasonableness of 

fees for appellate work to support the award of appellate attorney’s fees, and the trial 

court must condition the award of attorney’s fees to an appellee upon the appellant’s 

unsuccessful appeal. Id. 

A party may not recover exemplary damages unless the party establishes 

actual damages. Burbage, 447 S.W.3d at 263 (citing Hancock, 400 S.W.3d at 71). 

An award of nominal damages is not sufficient to support exemplary damages. TEX.

CIV. PRAC. & REM. CODE § 41.004(a). Because no evidence supports the jury’s 

award of actual damages, exemplary damages are not available. 
28 

III. NO REMAND FOR A DETERMINATION OF NOMINAL DAMAGES. 

When the defamation case is reversed based upon no evidence of actual 

damages, the court of appeals shall render judgment in favor of the defamation 

defendant rather than remand for a determination of nominal damages. Burbage, 

447 S.W.3d at 263 (citing MBM Fin. Corp. v. Woodlands Operating Co., L.P., 292 

S.W.3d 660, 666 (Tex. 2009) (recognizing that “where the record shows as a matter 

of law that the plaintiff is entitled only to nominal damages, the appellate court will 

not reverse merely to enable him to recover such damages” and instead rendering a 

take-nothing judgment)). 

IV. THE TRIAL COURT ABUSED ITS DISCRETION BY REFUSING TO 

STRIKE JURORS CHALLENGED FOR CAUSE. 

The Shamark Parties’ counsel moved to strike jurors 6, 8, 9, 10, 12, 13, 14, 

24, 26, 31, 32, 33, 27, 49, 50, and 51 for cause based upon the jurors’ statements that 

they could not apply the preponderance of the evidence to this case and would 

instead require the Shamark Parties to prove that Longoria committed theft beyond 

a reasonable doubt. RR Vol. 4, 136. The Shamark Parties’ counsel also moved to 

strike jurors 8, 9, 12, 13, 24, 26, 31, 49 for cause based upon the jurors’ statements 

that they would require a criminal conviction against Longoria before finding in 

favor of the Shamark Parties on the issue of theft in this case. RR Vol. 4, 136. The 

trial court denied the challenges for cause on both basis. RR Vol. 4, 141. The trial 
29 

court further denied the Shamark Parties’ request for additional strikes against the 

jurors. RR Vol. 4, 142. 

A person is disqualified to serve as a juror on a particular case if he or she has 

a bias or prejudice in favor of or against one of the parties, TEX. GOV’T CODE § 

62.105(4), or demonstrates “a general inability to follow the court’s instructions 

regarding the law.” Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 751 (Tex. 

2006); see TEX. R. CIV. P. 226a. If a prospective juror’s bias, prejudice, or inability 

to follow the trial court’s instructions is established as a matter of law, the trial court 

must disqualify that person from service. Malone v. Foster, 977 S.W.2d 562, 564 

(Tex. 1998). 

To disqualify a potential juror for bias or prejudice as a matter of law, the 

record must conclusively show that the potential juror’s state of mind led to the 

natural inference that he could not act with impartiality. See Hyundai Motor Co., 

189 S.W.3d at 751. Thus, a prospective juror who unequivocally admits bias or 

prejudice is disqualified to serve as a juror as a matter of law. Shepherd v. Ledford, 

962 S.W.2d 28, 34 (Tex. 1998); Sullemon v. U.S. Fid. & Guar. Co., 734 S.W.2d 10, 

14 (Tex. App.—Dallas 1987, no writ). 

When a prospective juror’s disqualification is not established as a matter of 

law, the trial court must make a factual determination as to whether the prospective 

juror is nevertheless sufficiently biased or prejudiced to merit disqualification. See 
30 

Sullemon, 734 S.W.2d at 15 (citing Swap Shop v. Fortune, 365 S.W.2d 151, 154 

(Tex. 1963)). A trial court’s decision overruling a challenge for cause carries with 

it an implied finding that bias or prejudice does not exist to the degree necessary to 

warrant disqualification. Buls v. Fuselier, 55 S.W.3d 204, 209-10 (Tex. App.-

Texarkana 2001, no pet.). 

“The key response that supports a successful challenge for cause is that the 

veniremember cannot be fair and impartial because the veniremenber’s feelings are 

so strong in favor of or against a party or against the subject matter of the litigation 

that the veniremember’s verdict will be based on those feelings and not on the 

evidence.” Buls, 55 S.W.3d at 210. The voir dire record is reviewed in relation to 

the veniremembers in light of this standard, mindful of the fact that a veniremember 

that is unequivocally biased or prejudiced “cannot revive his eligibility by recanting 

an earlier expression of bias or prejudice.” Smith v. Dean, 232 S.W.3d 181, 190 

(Tex. App.—Fort Worth 2007, pet. denied). 

A trial court’s ruling on a challenge for cause is reviewed for abuse of 

discretion. Hyundai Motor Co., 189 S.W.3d at 753–54. A trial court abuses its 

discretion in refusing to disqualify a prospective juror for cause only if the record, 

viewed in the light most favorable to the trial court’s ruling, shows that the venire 

member was not able or willing to set aside personal beliefs to act impartially. Buls, 

55 S.W.3d at 210. 
31 

In this case, there is no question that the jury was stacked against the Shamark 

Parties. After substantial discussion with the jury on the differences between 

burdens of proof for a “preponderance of the evidence” and “beyond a reasonable 

doubt,” and then after more discussion with the trial court outside the presence of 

the jury, counsel for the Shamark Parties followed up in his line of questioning by 

explaining the definition of the term “preponderance of the evidence.” After having 

clarifying the definition of “preponderance of the evidence” to satisfy the trial 

court’s concern, the jurors thereafter confirmed that they would hold the Shamark 

Parties to a higher burden of proof regardless of the trial court’s instruction on the 

preponderance of the evidence. RR Vol. 4, 103. Sixteen potential jurors confirmed 

their conviction that they would hold the Shamark Parties to a higher burden than 

instructed by the court. Id. Three of those potential jurors became members of the 

jury. Supp. CR 20–28. Thereafter, counsel for the Shamark Parties asked the clear 

and critical question, “Would everyone or anyone require a criminal conviction in 

order to award money in a civil case for theft?” RR Vol. 4, 108. Nine potential 

jurors raised their hands in response to that question. Id. Two of those potential 

jurors became members of this jury. Supp. CR 20–28. 

This is not a case in which there was any confusion demonstrated by the 

potential jurors. There was no individual voir dire of any juror to undermine their 

purported understanding of the issues. In this case, rehabilitation was not 
32 

permissible to clarify whether a potential juror’s response results from confusion or 

misunderstanding. Unlike the case in Murff, there were no statements by the 

potential jurors that demonstrated that any of them had any confusion about the 

questions being asked of them. See Murff v. Pass, 249 S.W.3d 407, 409 (Tex. 2008). 

In Murff, although the potential juror indicated that he would hold Pass to a clear 

and convincing standard of proof, it is apparent that the potential juror was confused 

as to the definition of “preponderance of the evidence.” Id. at 411. No such 

confusion was demonstrated by the potential jurors in this case and the definition of 

“preponderance of the evidence” was provided so that the jurors could confirm their 

answers from the earlier discussions of the standard of proof. RR Vol. 4, 103. 

Further, the additional issue of requiring the Shamark Parties to prove a criminal 

conviction against Longoria before they could find in favor of the Shamark Parties 

in this case was not an issue in the Murff case or cases cited by Murff. 

The jury was stacked against the Shamark Parties. If this case is not rendered 

in favor of the Shamark Parties so that Longoria takes nothing on his claims because 

of lack of evidence of damages, then the entire case should be reversed for a new 

trial for factually insufficient evidence on damages and because the jury was 

improperly empaneled. 
33 

V. CONCLUSION AND PRAYER. 

Shamark Smith Limited Partnership, Paul J. Smith, and Sharon D. Marcus, 

Appellants, request this Court to render judgment in favor of Appellants in whole or 

in part, or remand this case for a new trial. 

/s/ Tracy J. Willi 

Tracy J. Willi 

Texas Bar No. 00784633 

Willi Law Firm, P.C. 

9600 Escarpment Blvd., Suite 745, PMB 34 

Austin, TX 78749-1983 

Tel. (512) 288-3200 

Fax (512) 288-3202 

twilli@willi.com 

ATTORNEY FOR SHAMARK SMITH 

LIMITED PARTNERSHIP, SHARON D. 

MARCUS, AND PAUL J. SMITH 

CERTIFICATE OF COMPLIANCE 

 In accordance with Texas Rule of Appellate Procedure 9.4, I hereby certify 

that this document contains 8457 words. 

/s/ Tracy J. Willi 

Tracy J. Willi 

 
34 

CERTIFICATE OF FILING AND SERVICE 

I hereby certify that this document was filed with Clerk of Court through the 

Court’s electronic filing system and served on opposing counsel by the same manner 

on April 6, 2015 as follows: 

James David Walker 

P.O. Box 41 

Milano, Texas 76556 

(512) 636-9520 

(512) 455-7992 (fax) 

walker@2appeal.com 

Counsel for Martin Longoria 

/s/ Tracy J. Willi 

Tracy J. Willi 
Appendix 1
1082

CAUSE NO. 32,515 

SHAMARK SMITH LIMITED, Partnership 

Plaintiff 

vs. 

MARTIN M. LONGORIA 

Defendant 

FINAL JUDGMENT 

IN THE 20TH JUDICIAL 

DISTRICT COURT OF 

MILAM COUNTY, TEXAS 

On July 28, 2014, came on to be heard the trial of this cause. A jury was duly empaneled 

and evidence heard. At the conclusion of the evidence, the Court submitted the case to the jury. 

The Charge of the Court, including the jury's answers to the questions propounded therein, are 

incorporated into this Final Judgment for all purposes. 

After the jury returned its unanimous verdict, Defendant/Counter Plaintiff, Martin M. 

Longoria, moved for judgment. 

The jury unanimously found that neither Martin M. Longoria, nor any of his agents or 

employees, committed a conversion of any property, materials or items owned by Shamark 

Smith Limited Partnership, Sharon D. Marcus or Paul J. Smith. 

The jury unanimously found that neither Martin M. Longoria , nor any of his agents or 

employees, trespassed on the real property owned by Shamark Smith Limited Partnership, 

Sharon D. Marcus or Paul J. Smith. 

The jury unanimously found that Paul J. Smith, Sharon D. Marcus and Shamark Smith 

Limited Partnership maliciously prosecuted Martin M. Longoria. 

FINAL JUDGMENT PAGEi 

08.05.2014 
1083

The jury unanimously found that Paul J. Smith, Sharon D. Marcus and Shamark Smith 

Limited Partnership intentionally inflicted severe emotional distress on Martin M. Longoria. 

The jury unanimously found that Paul J. Smith, Sharon D. Marcus and Shamark Smith 

Limited Partnership published factual statements about Martin M. Longoria which were 

defamatory (as defined in the Charge of the Court), that such statements were false, that Paul J. 

Smith, Sharon D. Marcus and Shamark Smith Limited Partnership should have known, in the 

exercise of ordinary care, that the statements were false and had the potential to be defamatory, 

and that they knew such statements were false or that they were made with a high degree of 

awareness that they were probably false, to an extent that they in fact had serious doubts as to the 

truth of the statements. 

The jury also unanimously found, by clear and convincing evidence, that Paul J. Smith, 

Sharon D. Marcus and Shamark Smith Limited Partnership acted with "malice," which was 

defined in the Charge of the Court as a specific intent by Paul J. Smith, Sharon D. Marcus and 

Shamark Smith Limited Partnership, to cause substantial injury or harm to Martin M. Longoria 

and that such action resulted in harm to him. 

The unanimous verdict of the jury totals $703,000, upon which the Court will render 

judgment as set forth below. 

The Court, having considered the jury's unanimous verdict, finds that judgment should be 

rendered against Paul J. Smith, Sharon D. Marcus and Shamark Smith Limited Partnership, and 

in favor of Martin M. Longoria as follows: 

It is Ordered that Martin M. Longoria have judgment and recover from Paul J. Smith the 

amount of $120,000, in connection with actual damages found by the jury for which let 

FINAL JUDGMENT PAGE2 

08.05.2014 
1084

execution issue. 

It is Ordered that Martin M. Longoria have judgment and recover from Sharon D. Marcus 

the amount of $120,000 in connection with actual damages found by the jury for which let 

execution issue. 

It is Ordered that Martin M. Longoria have judgment and recover from Shamark Smith 

Limited Partnership the amount of $150,000 in connection with actual damages found by the 

jury for which let execution issue. 

It is Further Ordered that Martin M. Longoria have judgment and recover from Paul J. 

Smith the additional amount of $30,000.00, referable to exemplary damages, for which let 

execution issue. 

It is Further Ordered that Martin M. Longoria have judgment and recover from Sharon D. 

Marcus $30,000.00, referable to exemplary damages, for which let execution issue. 

It is Further Ordered that Martin M. Longoria have judgment and recover from Shamark 

Smith Limited Partnership $40,000.00, referable to exemplary damages, for which let execution 

issue. 

It is Further Ordered that Martin Longoria and his attorneys, Mickey Blanks and Bill 

Torrey, have and recover from Paul J. Smith, Sharon D. Marcus and Shamark Smith Limited 

Partnership, jointly and severally, attorney's fees in the sum of $213,000 for services rendered in 

this case, and it is the further judgment of the court that if this cause is not appealed, the 

judgment shall be credited with $50,000 as attorney's fees; but if this judgment is appealed to the 

Court of Appeals but not to the Supreme Court of Texas that this judgment shall be credited with 

$20,000 as attorney's fees. 

FINAL JUDGMENT PAGE3 

08.05.2014 
1085

It is Further Ordered that all amounts of the judgment here rendered will bear interest at 

the rate of five percent ( 5%) from date of judgment until paid. 

All costs of Court spent or incurred in this cause are adjudged against Paul J. Smith, 

Sharon D. Marcus and Shamark Smith Limited Partnership, jointly and severally. 

All writs and processes for the enforcement and collection of this judgment and costs of 

Court may issue as necessary. 

All relief requested in this case and not expressly granted is denied. This judgment finally 

disposes of all parties and claims and is appealable. 

SIGNED ON THIS THE /9-fL '2014 

GE PRESIDING 

FILED 

At 8: 00 o'clock~M 

AUG 18 2014 ~ 

~~-1.t.~ GI l'l!CHNE!R ~~er cu; • MILAM COUIVTY, TEXAS 

FINAL JUDGMENT PAGE4 

08.05.2014 
Appendix 2 
1031

SHAMARK SMITH LIMITED 

PARTNERSHIP, 

Plaintiff 

vs. 

MARTIN M. LONGORIA, 

Defendant. 

CAUSE NO. 32,515 

CHARGE OF THE COURT 

LADIES AND GENTLEMEN OF THE JtJRY: 

IN THE DISTRICT COURT 

201

h JUDICIAL DISTRICT 

MILAM COUNTY, TEXAS 

After the closing arguments. you will go to the jury room to decide the case, answer the 

questions that are attached, and reach a verdict. You may discuss the case with other jurors only 

when you are all together in the jury room. 

Remember my previous instructions: Do not discuss the case with anyone else. either in 

person or by any other means. Do not do any independent investigation about the case or conduct 

any research. Do not look up any words in dictionaries or on the Internet. Do not post information 

about the case on the Internet. Do not share any special knowledge or experiences with the other 

jurors. Do not use your phone or any other electronic device during your deliberations for any 

reason. I will give you a number where others may contact you in case of an emergency. 

Any notes you have taken are for your own personal use. You may take your notes back into 

the jury room and consult them during deliberations, but do not show or read your notes to your 

fellow jurors during your deliberations. Your notes are not evidence. Each of you should rely on 

your independent recollection of the evidence and not be influenced by the fact that another juror 

has or has not taken notes. 

You must leave your notes with the bailiff when you are not deliberating. The bailiff will 

give your notes to me promptly after collecting them from you. I will make sure your notes are kept 

in a safe. secure location and not disclosed to anyone. After you complete your deliberations. the 

bailiff will collect your notes. When you are released from jury duty, the bailiff will promptly 

destroy your notes so that nobody can read what you wrote. 

Here are the instructions for answering the questions. 

1. 

2. 

Do not let bias. prejudice. or sympathy play any part in your decision. 

Base your answers only on the evidence admitted in court and on the law that is in 

these instructions and questions. Do not consider or discuss any evidence that was 

not admitted in the courtroom. 

Page 1 of 29 

FILED 

At ~; 65" o'clock _f_M 

AUG 0 l 2014 ~ 

II: ~(k~ ~TNlf? FECHNER 

OISfR!CT a.ERK, MILAM COUNTY, TEXAS 
1032

3. You are to make up your own minds about the facts. You are the sole judges of the 

credibility of the witnesses and the weight to give their testimony. But on matters of law. 

you must follow all of my instructions. 

4. If my instructions use a word in a way that is different from its ordinary meaning. use 

the meaning I give you. which will be a proper legal definition. 

5. All the questions and answers are important. No one should say that any question or 

answer is not important. 

6. Answer "yes" or ""no·· to all questions unless you are told otherwise. A '"yes'" answer 

must be based on the preponderance of the evidence unless you are told otherwise. 

Whenever a question requires an answer other than ·'yes" or '"no," your answer must be 

based on a preponderance of the evidence unless you are told otherwise. 

The term "'preponderance of the evidence·· means the greater weight of credible evidence 

admitted in this case. If you do not find that a preponderance of the evidence supports a 

'·yes"' answer. then answer "no.'" A preponderance of the evidence is not measured by 

the number of witnesses or the number of documents admitted in evidence. For a fact to 

be proved by a preponderance of the evidence. you must find that the fact is more likely 

true than not true. 

7. Do not decide who you think should win before you answer the questions and then just 

answer the questions to match your decision. Answer each question carefully without 

considering who will win. Do not discuss or consider the effect your answers will have. 

8. Do not answer questions by drawing straws or by any method of chance. 

9. Some questions may ask you for a dollar amount. Do not agree in advance to decide on a 

dollar amount by adding up each juror's amount and then figuring the average. 

10. Do not trade your answers. For example. do not say. '·I will answer this question your 

way if you answer another question my way."' 

11. Unless otherwise instructed, the answers to the questions must be based on the decision 

of at least ten of the twelve jurors. The same ten jurors must agree on every answer. Do 

not agree to be bound by a vote of anything less than ten jurors. even if it would be a 

majority. 

As I have said before, if you do not follow these instructions, you will be guilty of juror 

misconduct. and I might have to order a new trial and start this process over again. That would 

waste your time and the parties· money. and would require the taxpayers of this county to pay for 

another trial. If a juror breaks any of these rules. tell that person to stop and report it to me 

immediately. 

Page 2 of29 
1033

A fact may be established by direct evidence or by circumstantial evidence or both. A fact is 

established by direct evidence when proved by documentary evidence or by witnesses who saw the 

act done or heard the words spoken. A fact is established by circumstantial evidence when it may be 

fairly and reasonably inferred from other facts proved. 

Page 3 of 29 
1034

Question l 

Did Martin M. Longoria or any of his agents or employees commit a conversion of any property. 

materials. or items owned by Shamark Smith Limited Partnership, Sharon D. Marcus, or Paul J. 

Smith? 

You are instructed that "conversion" occurs if (1) Shamark Smith Limited Partnership, Sharon D. 

Marcus, or Paul J. Smith beneficially owned any property, materials, or items; and (2) Martin M. 

Longoria or any of his agents or employees wrongfully exercised dominion or control over the 

property, materials, or items to the injury of Shamark Smith Limited Partnership, Sharon D. 

Marcus, or Paul J. Smith. 

Answer '"Yes'' or "No": 

Answer: ~ 

Page 4 of29 
1035

If you answered "Yes" to Question l, then answer the following question. Otherwise, do not answer 

the following question. 

Question 2 

What sum of money, if paid now in cash, would fairly and reasonably compensate Shamark 

Smith Limited Partnership, Sharon D. Marcus, and/or Paul J. Smith for the damages, if any, that 

were proximately caused by the conversion(s)? 

Consider the elements of damages listed below and none other. Consider each element 

separately. Do not reduce the amount, if any, in your answers because of the wrongdoing, if any, of 

Shamark Smith Limited Partnership, Sharon 0. Marcus, and/or Paul J. Smith. Any recovery will be 

determined by the court when it applies the law to your answers at the time of judgment. 

I. Loss of market value. 

Find the market value of the property, materials, or items in question in Milam County, 

Texas as of the date of the conversion(s). if any. 

"Market value" means the amount that would be paid in cash by a willing buyer who desires 

to buy. but is not required to buy, to a willing seller who desires to sell, but is under no 

necessity of selling. 

Answer in dollars and cents for damages. if any. 

2. Cost of repairs or restoration of the Old Sneed Home to its former condition. 

Consider the reasonable cost in Milam County, Texas. to restore the Old Sneed Home to the 

condition it was immediately before the occurrence in question. 

Answer in dollars and cents for damages. if any. 

3. Loss of use. 

"'Loss of use"" damages compensate Shamark Smith Limited Partnership, Sharon 0. Marcus, and/or 

Paul J. Smith for their lost profits sustained in the past. 

Answer in dollars and cents for damages. if any. 

Page 5 of 29 
1036

Question 3 

Did Martin M. Longoria or any of his agents or employees trespass on the real property belonging 

to Shamark Smith Limited Partnership, Sharon D. Marcus, and/or Paul J. Smith? 

Trespass to real property is defined as an unauthorized entry upon the land of another. Every 

unauthorized entry is a trespass even if no damage is done. A trespass can be either by entry 

of a person on another's land or by causing or permitting a thing to cross the boundary of the 

premises. 

Answer "Yes'" or ''No." 

Answer: 

Page 6 of29 
1037

If you answered "Yes" to Question 3. then answer the following question. Otherwise, do not answer 

the following question. 

Question 4 

What sum of money. if paid now in cash. would fairly and reasonably compensate Shamark 

Smith Limited Partnership. Sharon D. Marcus. and/or Paul J. Smith for the damages, if any. that 

were proximately caused by the trespass? 

Consider the elements of damages listed below and none other. Consider each element 

separately. Do not reduce the amount. if any. in your answers because of the wrongdoing. if any. of 

Shamark Smith Limited Partnership. Sharon D. Marcus, and/or Paul J. Smith. Any recovery will be 

determined by the court when it applies the law to your answers at the time of judgment. 

1. Loss of market value. 

Find the market value of the property. materials. or items in question in Milam County, 

Texas as of the date of the conversion(s). if any. 

"Market value" means the amount that would be paid in cash by a willing buyer who desires 

to buy. but is not required to buy, to a willing seller who desires to sell. but is under no 

necessity of selling. 

Answer in dollars and cents for damages, if any. 

Answer: _______ _ 

2. Cost ofrepairs or restoration of the Old Sneed Home to its former condition. 

Consider the reasonable cost in Milam County. Texas. to restore the Old Sneed Home to the 

condition it was immediately before the occurrence in question. 

Answer in dollars and cents for damages. if any. 

Answer: --------

3. Loss of use. 

·'Loss of use·· damages compensate Shamark Smith Limited Partnership. Sharon D. Marcus. and/or 

Paul J. Smith for their lost profits sustained in the past. 

Answer in dollars and cents for damages. if any. 

Answer: ---------

Page 7 of29 
1038

Answer the following question only if you unanimously answered ''Yes·· to Questions 1 or 3. 

Otherwise. do not answer the following question. 

Question 5 

To answer '·Yes'· to any part of the following question, your answer must be unanimous. You may 

answer ·'No'' to any part of the following question only upon a vote of ten or more jurors. 

Otherwise, you must not answer that part of the following question. 

Do you find by clear and convincing evidence that the harm to Shamark Smith Limited 

Partnership. Sharon D. Marcus. and/or Paul J. Smith resulted from malice? 

''Clear and convincing evidence'' means the measure or degree of proof 

that produces a firm belief or conviction of the truth of the allegations 

sought to be established. 

"Malice" means a specific intent by Martin M. Longoria or any of his agents 

or employees to cause substantial injury or harm to Shamark Smith Limited 

Partnership. Sharon D. Marcus, and/or Paul J. Smith. 

Answer .. Yes" or '·No ... 

Page 8 of29 
1039

Answer the following question only if you unanimously answered "Yes'' to Questions l or 3. 

Otherwise, do not answer the following question. 

Question 6 

To answer "Yes'' to any part of the following question, your answer must be unanimous. You may 

answer ·'No" to any part of the following question only upon a vote of ten or more jurors. 

Otherwise, you must not answer that part of the following question. 

Do you find by clear and convincing evidence that the harm to Shamark Smith Limited 

Partnership, Sharon D. Marcus. and/or Paul J. Smith resulted from gross negligence? 

"Clear and convincing evidence" means the degree or measure of proof that produces a 

firm belief or conviction of the truth of the allegations sought to be established. 

"Gross negligence" means an act or omission by Martin M. Longoria or any of his agents 

or employees, 

(a) which when viewed objectively from the standpoint of Martin M. Longoria 

or any of his agents or employees at the time of its occurrence involves an 

extreme degree of risk, considering the probability and magnitude of its 

potential harm to others; and 

(b) of which Martin M. Longoria or any of his agents or employees has actual, 

subjective awareness of the risk involved, but nevertheless proceeds with 

conscious indifference to the rights, safety, or welfare of others. 

Answer "Yes" or "No." 

Answer: --------

Page 9 of29 
1040

Answer the following question only if you unanimously answered "Yes·· to Question 5 or 6. 

Otherwise. do not answer the following question. 

You must unanimously agree on the amount of any award of exemplary damages. 

Question 7 

What sum of money. if any. if paid now in cash. should be assessed against Martin M. 

Longoria and awarded to Shamark Smith Limited Partnership. Sharon D. Marcus. and/or Paul J. 

Smith as exemplary damages. if any, for the conduct found in response to Question 5 or 6? 

'"Exemplary damages" means an amount that you may in your discretion award as a 

penalty or by way of punishment. 

Factors to consider in awarding exemplary damages, if any, area. The nature of the wrong. 

b. The character of the conduct involved. 

c. The degree of culpability of Martin M. Longoria. 

d. The situation and sensibilities of the parties concerned. 

e. The extent to which such conduct offends a public sense of justice and 

propriety. 

f. The net worth of Martin M. Longoria. 

Answer in dollars and cents. if any. 

Answer: ---------

Page 10 of29 
1041

Question 8 

Answer the following question only if you unanimously answered '·Yes" to Question 1. Otherwise. 

do not answer the following question. 

To answer '·Yes .. to any part of the following question, your answer must be unanimous. You may 

answer "No·· to any part of the following question only upon a vote of ten or more jurors. 

Otherwise. you must not answer that part of the following question. 

Did Martin M. Longoria or any of his agents or employees commit '"Theft", and was the 

value of the stolen property $20.000.00 or greater? 

"'Theft'" means that a person unlawfully appropriates property with the intent to deprive 

the owner of property. Appropriating property is unlawful if it is without the owner"s 

effective consent. 

A person acts with intent with respect to the nature of his conduct or to a result of his 

conduct when it is the conscious objective or desire to engage in the conduct or cause the 

result. 

""Deprive" means to ·withhold property from the owner permanently or for so extended 

a period o.f time that a mc{jor portion (?f the value or enjoyment <~f the property is lost to 

the owner. 

'"Owner·· means a person who has title to the property. possession of the property. 

whether lawful or not or a greater right to possession of the property than Martin M 

Longoria or any <d.his al{ents or employees. 

'"Property .. means anything of value. 

""Consent'' means assent in fact. whether express or implied. 

""Effective consent"" includes consent by a person legally authorized to act for the owner. 

Consent is not effective if induced by deception or coercion. 

Answer '"Yes .. or '"No.'" 

Answer: --------

Page 11 of29 
1042

Answer the following question only if you answered '"Yes" to Question 8. Otherwise. do not answer 

the following question. 

Question 9 

What is a reasonable fee for the necessary services of Shamark Smith Limited Partnership 

and Sharon D. Marcus' attorneys stated in dollars and cents? 

Factors to consider in determining a reasonable fee include: 

(l) the time and labor required. the novelty and difficulty of the questions involved. and 

the skill required to perform the legal service properly; 

(2) the likelihood that the acceptance of the particular employment will preclude other 

employment by the lawyer; 

(3) the fee customarily charged in the locality for similar legal services; 

( 4) the amount involved and the results obtained; 

(5) the time limitations imposed by the client or by the circumstances; 

( 6) the nature and length of the professional relationship with the client; 

(7) the experience. reputation. and ability of the lawyer or lawyers performing the 

services; and 

(8) whether the fee is fixed or contingent on results obtained or uncertainty of collection 

before the legal services have been rendered. 

Answer with an amount for each of the following: 

a. For representation in the trial court. 

Answer: -------

b. For representation through appeal to the Court of Appeals. 

Answer: -------

c. For representation through appeal to the Supreme Court of Texas. 

Answer: -------

Page 12 of29 
1043

Answer the following question only if you answered "'Yes"' to Question 8. Otherwise, do not answer 

the following question. 

Question 10 

What is a reasonable fee for the necessary services of Paul J. Smith's attorney, stated in 

dollars and cents? 

Factors to consider in determining a reasonable fee include: 

( 1) the time and labor required. the novelty and difficulty of the questions involved, and 

the skill required to perform the legal service properly; 

(2) the likelihood that the acceptance of the particular employment will preclude other 

employment by the lawyer; 

(3) the fee customarily charged in the locality for similar legal services; 

(4) the amount involved and the results obtained; 

(5) the time limitations imposed by the client or by the circumstances; 

(6) the nature and length of the professional relationship with the client; 

(7) the experience. reputation. and ability of the lawyer or lawyers performing the 

services; and 

(8) whether the fee is fixed or contingent on results obtained or uncertainty of collection 

before the legal services have been rendered. 

Answer with an amount for each of the following: 

a. For representation in the trial court. 

Answer: -------

b. For representation through appeal to the Court of Appeals. 

Answer: -------

c. For representation through appeal to the Supreme Court of Texas. 

Answer: 

Page 13 of29 
1044

Answer the following question only if you answered ''No" to Question 8. Otherwise, do not answer 

the following question. 

Question 11 

What is a reasonable fee for the necessary services of Martin M. Longoria' s attorneys, stated 

in dollars and cents? 

Factors to consider in determining a reasonable fee include: 

(1) the time and labor required, the novelty and difficulty of the questions involved, and 

the skill required to perform the legal service properly; 

(2) the likelihood that the acceptance of the particular employment will preclude other 

employment by the lawyer; 

(3) the fee customarily charged in the locality for similar legal services; 

( 4) the amount involved and the results obtained; 

(5) the time limitations imposed by the client or by the circumstances; 

(6) the nature and length of the professional relationship with the client; 

(7) the experience, reputation, and ability of the lawyer or lawyers performing the 

services; and 

(8) whether the fee is fixed or contingent on results obtained or uncertainty of collection 

before the legal services have been rendered. 

Answer with an amount for each of the following: 

a. For representation in the trial court. 

~ oo 

Answer: .. ,, 31 O()O. 

b. For representation through appeal to the Court of Appeals . 

.,~ ...0 

Answer: 001 OO() • 

c. For representation through appeal to the Supreme Court of Texas. 

Answer: ~D,000. oo , 

Page 14 of29 
1045

Question 12 

Did Paul J. Smith. Sharon D. Marcus. and/or Shamark Smith Limited Partnership 

maliciously prosecute Martin Longoria? 

'"Malicious prosecution'" occurs when one person m1t1ates or procures. with malice. and 

without probable cause at the time the prosecution is commenced. the prosecution of an 

innocent person. 

"Malice·· means ill will. bad or evil motive. or such gross indifference to the rights of others 

as to amount to a willful or wanton act. 

"Probable cause'' means the existence of such facts and circumstances as would excite belief 

in a person of reasonable mind, acting on the facts or circumstances within his knowledge at 

the time the prosecution was commenced. that the other person was guilty of a criminal 

offense. The probable cause determination asks whether a reasonable person would believe 

that a crime had been committed given the facts as the complainant honestly and reasonably 

believed them to be before the criminal proceedings were instituted. 

Answer "Yes" or '"No" as to Paul J. Smith. 

Answer: __ \[_.....e ... ~------

Answer "Yes·' or ··No" as to Sharon D. Marcus 

Answer: _ _,Ll....-t...s~----

Answer "Yes" or '"No" as to Shamark Smith Limited Partnership 

Answer: --~_._,,e!:>~----

Page 15 of29 
1046

Question 13 

Did Paul J. Smith, Sharon D. Marcus. and/or Shamark Smith Limited Partnership intentionally 

inflict severe emotional distress on Martin Longoria? s h."""'9"" rn~ ti" c.rs) v-.J... (J -

h,,..~lIntentional infliction of emotional distress occurs when the det dant acts mtent1ona r 

recklessly with extreme and outrageous conduct to cause the emotional distress and 

the emotional distress suffer. ed. by 

. th@ plaintiff was severe. ,,_,.p ... n~ t" ~ .... ~f 

I ,.~,..ti'"' ~,...~,.I - . . "Extreme and outr geo s conduce occurs only where t econ uct has been so out geous in 

character, and so extreme in degree. as to go beyond all possible bounds of decency. and to 

be regarded as atrocious, and utterly intolerable in a civilized community. 

Answer ''Yes·· or .. No'' as to Paul J. Smith. 

Answer: __ l}~e._5,__ __ _ 

Answer .. Yes·· or "No'" as to Sharon D. Marcus 

Answer: __ Y_._..e ..... 5 ___ _ 

Answer ''Yes·· or ··No"' as to Shamark Smith Limited Partnership 

Answer: \.f f..S --~-=----

Page 16 of29 
1047

Question 14 

Did Paul J. Smith. Sharon D. Marcus, and/or Shamark Smith Limited Partnership publish the 

following statement: that Martin Longoria had stolen components of or contents inside the Old 

Sneed Home? 

"'Publish"' means intentionally or negligently to communicate the matter to a person other 

than Martin Longoria who is capable of understanding its meaning and may be made orally 

or in writing. 

Answer "Yes·· or ··No'" as to Paul J. Smith. 

Answer: ___ '-1.""e...,,s,,J.___ __ 

Answer ··Yes·· or ··No" as to Sharon D. Marcus 

Answer: ___ \{~t5...,_ __ _ 

Answer '·Yes·· or "No"' as to Shamark Smith Limited Partnership 

Answer: ---~~es ____ _ 

Page 17 of29 
1048

If you answered "Yes" in Question 14 as to Paul J. Smith, Sharon D. Marcus, and/or Shamark 

Smith Limited Partnership, then answer the following question as to that respective party. 

Otherwise, do not answer the following question. 

Question 15 

Was the statement in Question 14 defamatory concerning Martin Longoria? 

"Defamatory'' means an ordinary person would interpret the statement in a way that tends to 

injure a living person· s reputation and thereby expose the person to public hatred, contempt 

or ridicule. or financial injury or to impeach the person's honesty, integrity, virtue, or 

reputation. 

In deciding whether a statement is defamatory, you must construe the statement as a whole 

and in light of the surrounding circumstances based upon how a person of ordinary 

intelligence would perceive it. 

Answer "Yes'' or ''No" as to Paul J. Smith. 

Answer: 

Answer ·'Yes'' or "No" as to Sharon D. Marcus 

Answer: 

Answer "Yes" or '·No" as to Shamark Smith Limited Partnership 

Answer: __ \/~e ..... 5 ____ _ 

Page 18 of29 
1049

If you answered ''Yes" in Question 15 as to Paul J. Smith. Sharon D. Marcus. and/or Shamark 

Smith Limited Partnership. then answer the following question as to that respective party. 

Otherwise. do not answer the following question. 

Question 16 

Do you find that the statement that Martin Longoria had stolen components of or contents inside the 

Old Sneed Home was false at the time it was made as it related to Martin Longoria? 

"False·· means that a statement is not literally true or not substantially true. A statement is 

not ··substantially true·· if. in the mind of the average person, the gist of the statement is 

more damaging to the person affected by it than a literally true statement would have been. 

Answer '·Yes"' or ··No" as to Paul J. Smith. 

Answer: ~es 

Answer ''Yes'" or "No"' as to Sharon D. Marcus 

Answer: --~_.__..f.S~---

Answer "Yes·· or '·No'" as to Shamark Smith Limited Partnership 

Answer: 

Page 19 of29 
1050

If you answered "'Yes" in Question 16 as to Paul J. Smith. Sharon D. Marcus. and/or Shamark 

Smith Limited Partnership, then answer the following question as to that respective party. 

Otherwise. do not answer the following question. 

Question 17 

Did Paul J. Smith. Sharon D. Marcus, and/or Shamark Smith Limited Partnership know or should 

they have known, in the exercise of ordinary care. that the statement contained in Question 14 was 

false and had the potential to be defamatory? 

"Ordinary care" concerning the truth of the statement and its potential to be defamatory 

means that degree of care that would be used by a person of ordinary prudence under the 

same or similar circumstances. 

Answer ""Yes·· or ··No'' as to Paul J. Smith. 

Answer: --~~e .... S~---

Answer "Yes"' or "No" as to Sharon D. Marcus 

Answer: --~~es ____ _ 

Answer ''Yes"' or "No" as to Shamark Smith Limited Partnership 

Answer: 

Page 20 of29 
1051

If you answered "Yes" in Question 17 as to Paul J. Smith, Sharon D. Marcus, and/or Shamark 

Smith Limited Partnership. then answer the following question as to that respective party. 

Otherwise, do not answer the following question. 

Question 18 

Do you find by clear and convincing evidence that, at the time Paul J. Smith. Sharon D. Marcus, 

and/or Shamark Smith Limited Partnership made the statement in Question 14: 

1. Paul J. Smith, Sharon D. Marcus. and/or Shamark Smith Limited Partnership knew it was 

false as it related to Martin Longoria, or 

2. Paul J. Smith, Sharon D. Marcus. and/or Shamark Smith Limited Partnership made the 

statement with a high degree of awareness that it was probably false. to an extent that Paul J. 

Smith, Sharon D. Marcus. and/or Shamark Smith Limited Partnership in fact had serious 

doubts as to the truth of the statement? 

"'Clear and convincing evidence" is that measure or degree of proof that will produce 

in the mind of the jury a firm belief or conviction as to the truth of the allegations 

sought to be established. 

Answer "Yes'' or "No" as to Paul J. Smith. 

Answer: ~e...s 

Answer ''Yes" or "No'' as to Sharon D. Marcus 

Answer: __ Y_._.es__ _ 

Answer "Yes'' or '"No" as to Shamark Smith Limited Partnership 

Answer: 

Page 21 of29 
1052

If you answered '·Yes" in Question(s) 12, 13, or 18 as to Paul J. Smith, Sharon D. Marcus, and/or 

Shamark Smith Limited Partnership, then answer the following question as to that respective party. 

Otherwise, do not answer the following question. 

Question 19 

What sum of money, if paid now in cash, would fairly and reasonably compensate Martin Longoria 

for his injuries, if any, that were proximately caused by the statement in Question 14? 

Consider the elements of damages listed below and none other. Consider each element separately. 

Do not award any sum of money on any element if you have otherwise, under some other element 

awarded a sum of money for the same loss. 

That is, do not compensate twice for the same loss, if any. Do not include interest 

on any amount of damages you find. 

Answer separately in dollars and cents for damages, if any. 

a. Injury to reputation sustained in the past. 

Answer as to Paul J. Smith: 

,f ~ Answer: q (), O{>() . • 

Answer as to Sharon D. Marcus: 

Answer: ~O. O{)O. 01> 

, 

Answer as to Shamark Smith Limited Partnership: 

u DO 

Answer: 0 '15, 0()(). 

b. Injury to reputation that, in reasonable probability, Martin Longoria will sustain in the future. 

Answer as to Paul J. Smith: 

.JI oo 

Answer: 9 / (J. (){)(). , 

Answer as to Sharon D. Marcus: 

Answer: 6io, 000. o-o 

Answer as to Shamark Smith Limited Partnership: 

Answer: 4-;o, ooo. 0° __ t?"t _,__ ___ _ 

Page 22 of29 
1053

c. Mental anguish sustained in the past. 

Answer as to Paul J. Smith: 

4 oo Answer: c;lO., 000. - • 

Answer as to Sharon D. Marcus: 

Answer: .j~f>. , 0()(). ~ 

Answer as to Shamark Smith Limited Partnership: 

"' oo Answer: .q .34-0 00 :"'""' 

d. Mental anguish that, in reasonable probability. Martin Longoria will sustain in the future. 

Answer as to Paul J. Smith: 

Answer: ------- -oAnswer as to Sharon D. Marcus: 

Answer: -()- -------

Answer as to Shamark Smith Limited Partnership: 

Answer: -OPage 23 of29 
1054

Answer the following question only if you unanimously answered "Yes" to Question(s) 12, 13. or 

18. Otherwise. do not answer the following question. 

Question 20 

To answer ''Yes" to any part of the following question, your answer must be unanimous. You may 

answer '"No" to any part of the following question only upon a vote of ten or more jurors. 

Otherwise, you must not answer that part of the following question. 

Do you find by clear and convincing evidence that the harm to Martin M. Longoria resulted 

from malice? 

"Clear and convincing evidence'' means the measure or degree of proof 

that produces a firm belief or conviction of the truth of the allegations 

sought to be established. 

"Malice" means a specific intent by Shamark Smith Limited Partnership, 

Sharon D. Marcus, and/or Paul J. Smith or any of his agents or employees to 

cause substantial injury or harm to Martin M. Longoria 

Answer "'Yes" or "No'' as to Paul J. Smith. 

Answer: --~ ..... e~s ___ _ 

Answer "Yes" or '"No" as to Sharon D. Marcus 

Answer: \./es 

Answer "Yes" or "No" as to Shamark Smith Limited Partnership 

Answer: __ l/~eo~---

Page 24 of29 
1055

Answer the following question only if you unanimously answered ·'Yes" to Question 20. Otherwise, 

do not answer the following question. 

Question 21 

To answer .. Yes" to any part of the following question, your answer must be unanimous. You may 

answer "No'' to any part of the following question only upon a vote of ten or more jurors. 

Otherwise. you must not answer that part of the following question. 

Do you find by clear and convincing evidence that the harm to Martin M. Longoria resulted 

from fraud? 

"Clear and convincing evidence" means the measure or degree of proof 

that produces a firm belief or conviction of the truth of the allegations 

sought to be established. 

'·Fraud'' occurs when: 

1. A party makes a material misrepresentation, and 

2. The misrepresentation is made with knowledge of its falsity or made 

recklessly without any knowledge of the truth and as a positive assertion; 

and 

3. The misrepresentation is made with the intention that it should be acted 

on by the other party; and 

4. The other party relies on the misrepresentation and thereby suffers 

mJury. 

"Misrepresentation" means a false statement of fact. 

Answer '·Yes'' or "No" as to Paul J. Smith. 

Answer: 

Answer .. Yes" or .. No" as to Sharon D. Marcus 

Answer: __ Y_.__e. .. .5,__ __ _ 

Answer ··Yes" or '"No .. as to Shamark Smith Limited Partnership 

Answer: __ l{---"'-"e__~c;'--------

Page 25 of29 
1056

Answer the following question only if you unanimously answered ·•yes'' to Question 21. Otherwise. 

do not answer the following question. 

You must unanimously agree on the amount of any award of exemplary damages. 

Question 22 

What sum of money. if any. if paid now in cash, should be assessed against Shamark Smith 

Limited Partnership, Sharon D. Marcus. and/or Paul J. Smith and awarded to Martin M. Longoriao/p 

as exemplary damages, if any. for the conduct found in response to Question~ or ,;-l? \ 

··Exemplary damages" means an amount that you may in your discretion award as a 

penalty or by way of punishment. 

Factors to consider in awarding exemplary damages, if any. area. The nature of the wrong. 

b. The character of the conduct involved. 

c. The degree of culpability of Shamark Smith Limited Partnership, Sharon D. 

Marcus. and/or Paul J. Smith. 

d. The situation and sensibilities of the parties concerned. 

e. The extent to which such conduct offends a public sense of justice and 

propriety. 

f. The net worth of Shamark Smith Limited Partnership. Sharon D. Marcus. 

and/or Paul J. Smith. 

Answer in dollars and cents. if any. 

Answer as to Paul J. Smith: 

Answer: ".ao, 00(). 00 

• 

Answer as to Sharon D. Marcus: 

Answer: $30, {)()(). ~ • 

Answer as to Shamark Smith Limited Partnership: 

J/,,11 00 

Answer: rtJ, 000 • 

' 

Page 26 of29 
1057

When you go into the jury room to answer the questions, the first thing you will need to do is 

choose a presiding juror. 

The presiding juror has these duties: 

1. have the complete charge read aloud if it will be helpful to your deliberations; 

2. preside over your deliberations, meaning manage the discussions, and see that you follow 

these instructions; 

3. give written questions or comments to the bailiff who will then give them to the judge; 

4. write down the answers that you agree on: 

5. get the signatures for the verdict certificate: and 

6. notify the bailiff that you have reached a verdict. 

Do you understand the duties of the presiding juror? If you do not, please tell me now. 

Unless otherwise instructed, you may answer the questions on a vote of 10 jurors. The same 

10 jurors must agree on every answer in the charge. This means you may not have one group of l 0 

jurors agree on one answer and a different group of 10 jurors agree on another answer. 

If 10 jurors agree on every answer. those l 0 jurors sign the verdict. 

If all 12 of you agree on every answer. you are unanimous and only the presiding juror signs 

the verdict. 

All jurors should deliberate on every question. You may end up with all 12 of you agreeing 

on some answers. while only 10 or 11 of you agree on other answers. But when you sign the 

verdict, only those 10 who agree on every answer will sign the verdict. 

There are some special instructions before Questions 5, 6, 7, 8 and 22 explaining how to 

answer those questions. Please follow the instructions. If all 12 of you answer those questions, you 

will need to complete a second verdict certificate for those questions. 

Do you understand these instructions? If you do not, please tell me now. 

Page 27 of29 
1058

Verdict Certificate 

Check one: 

I Our verdict is unanimous. All 12 of us have agreed to each and every answer. The presiding 

juror has signed the certificate for all 12 of us. 

J(,ld~ S helo..rvl.er 

Our verdict is not unanimous. Eleven of us have agreed to each and every answer and have 

signed the certificate below. 

Our verdict is not unanimous. Ten of us have agreed to each and every answer and have 

signed the certificate below. 

SIGNATURE NAME PRINTED 

Page 28 of29 

FILED 

At ~;IS: o'clock_/!_M 

AUG 0 12014 !!/ 

IJh,. &t t!hnW C~fECHNER OIS1'1\lc:T WRIC, Mii.AM C:OUKTY, TEXAS 
1059

If you have answered Questions 5. 6. 7. 8 and/or 22. then you must sign this certificate also. 

ADDITIONAL CERTIFICATE 

I certify that the jury was unanimous in answering Question No. 5. All twelve of us agreed 

to the answer. The presiding juror has signed the certificate for all twelve of us. 

Signature of Presiding Juror Printed Name of Presiding Juror 

I certify that the jury was unanimous in answering Question No. 6. All twelve of us agreed 

to the answer. The presiding juror has signed the certificate for all twelve of us. 

Signature of Presiding Juror Printed Name of Presiding Juror 

I certify that the jury was unanimous in answering Question No. 7. All twelve of us agreed 

to the answer. The presiding juror has signed the certificate for all twelve of us. 

Signature of Presiding Juror Printed Name of Presiding Juror 

I certify that the jury was unanimous in answering Question No. 8. All twelve of us agreed 

to the answer. The presiding juror has signed the certificate for all twelve of us. 

Signature of Presiding Juror Printed Name of Presiding Juror 

I certify that the jury was unanimous in answering Question No. 22. All twelve of us agreed 

to the answer. The presiding juror has signed the certificate for all twelve of us. 

Page 29 of29 

FILED 

At R: IS-o'clock _f!_M 

AUG 0 l 2014 lf> 

~ C~ &t~ Ft!Cl-fN!!iR 

DISTIUC'I' CLfRI<, MlWI COUN'IY, TfXAS 
Appendix 3 
BURBAGE v. BURBAGE Tex. 249

Cite as 447 S.W.3d 249 (Tex. 2014)

Allen Chadwick BURBAGE, Petitioner

and Cross–Respondent,

v.

W. Kirk BURBAGE and Burbage

Funeral Home, Respondents

and Cross–Petitioners.

No. 12–0563.

Supreme Court of Texas.

Argued Jan. 9, 2014.

Delivered Aug. 29, 2014.

Background: Owner of family funeral

home brought action against his brother

for defamation. The 21st Judicial District

Court, Bastrop County, Terry L. Flenniken, J., entered judgment in favor of owner

on jury verdict of nearly $10 million in

compensatory and exemplary damages,

and the trial court permanently enjoined

brother from publishing like statements.

Brother appealed. The Austin Court of

Appeals, Jeff Rose, J., 447 S.W.3d 291,

affirmed in part, modified in part, and

vacated in part. Both parties sought review.

Holdings: The Supreme Court, Green, J.,

held that:

(1) objection by brother failed to preserve

for appeal issue of improper instruction, and

(2) no evidence supported jury’s award of

$3.8 million in actual damages to owner.

Affirmed in part and reversed in part.

1. Libel and Slander O50

The common law provides a qualified

privilege against defamation liability when

communication is made in good faith and

the author, the recipient, or a third person,

or one of their family members, has an

interest that is sufficiently affected by the

communication.

2. Libel and Slander O93, 101(4)

The qualified privilege against defamation liability when the communication is

made in good faith and the author, recipient, or a third person, or one of their

family members has an interest that is

sufficiently affected by the communication

operates as an affirmative defense in the

nature of confession and avoidance; the

defendant bears the burden of proving

privileged publication unless the plaintiff’s

petition affirmatively demonstrates privilege.

3. Libel and Slander O101(4)

If a defendant establishes a qualified

privilege against defamation liability when

the communication is made in good faith

and the author, recipient, or a third person, or one of their family members has an

interest that is sufficiently affected by the

communication, the burden shifts to the

plaintiff to prove that the defendant made

the statements with actual malice.

4. Libel and Slander O4

‘‘Actual malice,’’ in the defamation

context, means the making of a statement

with knowledge that it is false, or with

reckless disregard of whether it is true.

 See publication Words and Phrases

for other judicial constructions and

definitions.

5. Libel and Slander O123(8)

Qualified privilege against defamation

liability when the communication is made

in good faith and the author, recipient, or a

third person, or one of their family members has an interest that is sufficiently

affected by the communication presents a

question of law when the statements at

issue employ unambiguous language and

where the facts and circumstances of publication are undisputed.
250 Tex. 447 SOUTH WESTERN REPORTER, 3d SERIES

6. Libel and Slander O124(7), 128

Comingling of unprivileged and potentially privileged statements for the jury to

determine if each was substantially true at

the time it was made may result in harmful error in defamation action.

7. Trial O238

It is fundamental to the system of

justice that parties have the right to be

judged by a jury properly instructed in the

law.

8. Appeal and Error O213

Where a party does not raise an objection in defamation action to comingling

of unprivileged and potentially privileged

statements for the jury to determine if

each was substantially true at the time it

was made, that party cannot raise the

issue, as it failed to preserve the claim.

9. Appeal and Error O230, 231(1), 242(1)

The test for whether an issue is preserved for appeal ultimately asks whether

the party made the trial court aware of the

complaint, timely and plainly, and obtained

a ruling. Rules App.Proc., Rule 33.1.

10. Trial O279

Purpose of rule that requires the party objecting to a charge to point out distinctly the objectionable matter and the

grounds of the objection is to afford trial

courts an opportunity to correct errors in

the charge by requiring objections both to

clearly designate the error and to explain

the grounds for complaint. Vernon’s

Ann.Texas Rules Civ.Proc., Rule 274.

11. Appeal and Error O231(1)

In order for an objection to preserve

an issue for appeal, it must apprise the

trial court of the error alleged such that

the court has the opportunity to correct

the problem. Vernon’s Ann.Texas Rules

Civ.Proc., Rule 274.

12. Appeal and Error O232(3)

Objection by brother of family funeral

home owner failed to preserve for appeal

issue of improper instruction regarding

statements made in a letter in action by

owner against owner’s brother for defamation, although the objection raised the subject of qualified privilege; where, when the

trial court asked brother if he had a requested instruction, he responded only

with a request for a question that appeared to address the falsity of the statements themselves, and it was unclear what

brother hoped to accomplish by requesting

an additional question. Vernon’s Ann.Texas Rules Civ.Proc., Rule 274; Rules App.

Proc., Rule 33.1.

13. Appeal and Error O231(1), 775

Procedural rules are construed liberally so that the right to appeal is not lost

unnecessarily; but, when an objection fails

to explain the nature of the error, court

cannot make assumptions.

14. Appeal and Error O181

Preservation of error reflects important prudential considerations recognizing

that the judicial process benefits greatly

when trial courts have the opportunity to

first consider and rule on error.

15. Appeal and Error O181

Affording courts the opportunity to

first consider and rule on an alleged error

conserves judicial resources and promotes

fairness by ensuring that a party does not

neglect a complaint at trial and raise it for

the first time on appeal.

16. Attorney and Client O62

Supreme Court may not stray from

procedural rules because a party represented himself at trial.

17. Appeal and Error O1001(1, 3)

On an issue where the opposing party

bears the burden of proof, Supreme Court
BURBAGE v. BURBAGE Tex. 251

Cite as 447 S.W.3d 249 (Tex. 2014)

sustains a legal-sufficiency challenge to an

adverse finding if its review of the evidence demonstrates a complete absence of

a vital fact, or if the evidence offered is no

more than a scintilla.

18. Appeal and Error O1001(1)

More than a scintilla of evidence exists, as required to defeat a legal sufficiency challenge to an adverse finding, when

the evidence would enable reasonable and

fair-minded people to reach different conclusions.

19. Appeal and Error O1001(3)

Supreme Court regards evidence that

creates a mere surmise or suspicion of a

vital fact as, in legal effect, no evidence.

20. Appeal and Error O930(1)

Supreme Court considers the evidence

in the light most favorable to the judgment, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors

could not.

21. Libel and Slander O101(1), 114

Texas law presumes that defamatory

per se statements cause reputational harm

and entitle a plaintiff to general damages

such as loss of reputation and mental anguish; but this presumption yields only

nominal damages.

22. Appeal and Error O1004(1)

Beyond nominal damages, Supreme

Court reviews presumed damages for evidentiary support.

23. Libel and Slander O121(.5)

Jury latitude in awarding damages in

defamation action has limits; latitude does

not give the jury carte blanche to do whatever it will, especially when the action is

brought by public officials.

24. Libel and Slander O128

Judicial review of jury discretion in

awarding damages in defamation action remains important to protect free speech,

even in a case outside the realm of media

defendants and public officials. U.S.C.A.

Const.Amend. 1.

25. Libel and Slander O116

Supreme Court must ensure that noneconomic damages in defamation action

compensate for actual injuries and are not

simply a disguised disapproval of the defendant.

26. Libel and Slander O112(1)

Some concrete basis for an estimate of

the value of a business injured by defamation is required.

27. Libel and Slander O117

No evidence supported jury’s award of

$3.8 million in actual damages to owner of

funeral home from defamation by owner’s

brother, where the evidence did not show

actual loss of reputation, that anyone believed the defamation, that the business

suffered an actual loss, or even the funeral

home’s actual value.

28. Damages O87(2)

A party may not recover exemplary

damages unless the plaintiff establishes actual damages.

29. Constitutional Law O2174

 Injunction O1456

Prohibitive injunctions of future

speech that is the same or similar to

speech that has been adjudicated to be

defamatory operate as impermissible prior

restraints on free speech. U.S.C.A. Const.

Amend. 1.

David Greene, Electronic Frontier

Foundation, San Francisco, CA, Marc A.
252 Tex. 447 SOUTH WESTERN REPORTER, 3d SERIES

Fuller, Vinson & Elkins LLP, Dallas, TX,

for Amicus Curiae, Electronic Frontier

Foundation.

James J. Scheske, James J. Scheske,

PLLC, Peter D. Kennedy, William Gerow

Christian, Graves Dougherty Hearon &

Moody PC, Austin, TX, Jason P. Steed,

Bell Nunnally & Martin LLP, Dallas, TX,

for Petitioner, Allen Chadwick Burbage.

Gregory Scott Cagle, Savrick, Schumann, Johnson, McGarr Kaminski & Shirley, LLP, Austin, TX, for Respondent, W.

Kirk Burbage and Burbage Funeral

Home.

Justice GREEN delivered the opinion of

the Court.

In this defamation case, a jury assessed

compensatory and exemplary damages

against Allen Chadwick Burbage (Chad)

for ten statements defaming his brother,

W. Kirk Burbage (Kirk). The trial court

also permanently enjoined Chad from

making similar statements. We are presented with three issues: (1) whether any

defamatory statements fell within a qualified privilege; (2) whether evidence supports the jury’s damage awards; and (3)

whether the trial court abused its discretion by issuing the permanent injunction.

Because we hold that Chad failed to preserve error in the charge, we do not reach

the issue of qualified privilege. We also

hold that the permanent injunction operates as an impermissible prior restraint on

freedom of speech. Accordingly, we affirm those parts of the court of appeals’

judgment. But, on damages, we hold that

no evidence supports the compensatory

damage award. We reverse that part of

the court of appeals’ judgment.

I. Factual and Procedural

Background

Kirk owns and operates the Burbage

Funeral Home, a centuries-old family business, in Worcester County, Maryland.

Chad is Kirk’s older brother. Chad and

Kirk’s grandmother, Anna Burbage, managed the funeral home from her husband’s

death in the 1940s until her death in 1985.

In her will, Anna left the funeral home and

all of its assets to Kirk.

Anna bequeathed the land for the Burbage family cemetery to her children,

Richard Burbage, Sr., Chad and Kirk’s

father, and Jean Burbage Prettyman. Although primarily a family cemetery, Anna

and Richard gave permission for burial or

entombment of several non-family members. Richard died in 1991; in his will, he

left his 50% undivided interest in the family cemetery property to Chad and Kirk’s

mother, Virginia Burbage Markham, but

the will was never probated. Virginia conveyed this interest to Kirk by quitclaim

deed in 2003. Chad felt Kirk obtained the

funeral home and the family cemetery interest through manipulation, first of Anna

and later of Virginia.

Although the origin of the strife between

Chad and Kirk remains unclear, the

‘‘Farm Property,’’ a 23–acre tract that Virginia inherited from Richard in 1991, aggravated any existing discord. The potential sale of the property ultimately aligned

Virginia’s four children against each other:

Chad and Patrice Burbage Lehmann wanted to sell, while Kirk and his brother,

Keith, demurred. Throughout 2006 and

2007, Chad exchanged heated emails with

Kirk’s attorney. In late 2007 and early

2008, Chad created a website, www.anna

burbage.org, to air his grievances with

Kirk. Chad placed several posters around

town to publicize the website. The website contained the following allegations:

1 ‘‘Anna Burbage (‘Miss Anna’) was a

victim of Elder Abuse. The Abuser

was her grandson, Kirk Burbage and

others.’’
BURBAGE v. BURBAGE Tex. 253

Cite as 447 S.W.3d 249 (Tex. 2014)

1 ‘‘Virginia Burbage Markham was the

principal of Stephen Decatur High

School serving northern Worcester

County Maryland. At the present

time, she is being abused by her son,

Kirk Burbage, of the Burbage Funeral

Home. She is currently a victim of

ELDER as well as FAMILY

ABUSE.’’

1 ‘‘The methods [of abuse] include: lies,

trespassing, grand larceny, will tampering/undue influence, gifts with the

intent to control his mother, discrediting fellow siblings, deceptively misrepresenting the contents of legal documents requiring the signature of the

ABUSED for personal gain and to

cover up land fraud and involving the

ABUSED ELDER in Cemetery Land

Fraud implicating several families including Shirley and Brice Phillips of

the Phillips Crab House.’’

1 ‘‘Kirk Burbage has also been known to

abuse the dead, specifically his cousin,

Anne Prettyman Jones.’’

Chad also sent letters to Shirley and Brice

Phillips, family friends of the Burbages

who had earlier obtained permission to

place a mausoleum in the Burbage cemetery. The letters espoused a common interest in settling property rights to the

cemetery but stated, ‘‘You currently have

no title or right to be in the Burbage

Family Cemetery.’’ Chad made the following statements in the letters:

1 ‘‘Kirk Burbage has committed numerous abuses to family members.’’

1 ‘‘We are the victims of the selfish,

greedy and unlawful actions of Kirk

Burbage.’’

1 ‘‘Kirk Burbage of the Burbage Funeral Home with the assistance of his

attorney Robert McIntosh have fraudulently misrepresented rights which

Kirk Burbage does not haveTTTT’’

1 ‘‘Kirk Burbage fraudulently obtained a

Quit Claim [deed] from our mother by

what is believed to be elder

abuseTTTT’’

1 ‘‘Kirk Burbage and the Burbage Funeral Home violated Maryland law by

not having a license to operate a cemetery’’

1 ‘‘Kirk Burbage did commit fraud.’’

Kirk and the Burbage Funeral Home

sued Chad for defamation in Bastrop

County.1

 Chad appeared pro se. The trial court submitted ten questions—one for

each of the statements reproduced above—

asking the jury whether Chad had proven

that the statements were substantially

true. The jury answered ‘‘no’’ to all questions. The court also asked questions on

compensatory and exemplary damages for

Kirk and, separately, for the Burbage Funeral Home. The court instructed the jury

that all statements were defamatory per se

because each statement either leveled a

criminal charge or tended to cause injury

to the funeral home’s business or to Kirk’s

profession. The jury awarded Kirk

$6,552,000: $250,000 for past injury to reputation; $2,500,000 for future injury to

reputation; $1,000 for past mental anguish; $1,000 for future mental anguish;

and $3,800,000 in exemplary damages.

The jury awarded the Burbage Funeral

Home $3,050,000: $50,000 for past injury

to reputation; $1,000,000 for future injury

to reputation; and $2,000,000 in exemplary

damages. The trial court also permanently enjoined Chad from future defamatory

speech in a four-page list of prohibited

topics (tied to the ten defamatory statements).

1. Chad was a resident of Bastrop County,

Texas at the time the lawsuit was filed. See

TEX. CIV. PRAC. & REM.CODE § 15.017.
254 Tex. 447 SOUTH WESTERN REPORTER, 3d SERIES

Chad appealed. The court of appeals

reduced the exemplary damages to

$750,000 under Texas Civil Practice and

Remedies Code section 41.008(b), upheld

the other damage awards, and vacated the

injunction. 447 S.W.3d 291, 295, 2011 WL

6756979 (Tex.App.-Austin 2011, pet. granted) (mem.op.). Each party petitioned for

review; we granted both petitions. 57

Tex. Sup.Ct. J. 53 (Nov. 22, 2013).

II. Qualified Privilege

and Charge Error

We first address Chad’s contention that

qualified privilege barred Kirk’s recovery

based on Chad’s defamatory statements to

the Phillipses. If Chad’s statements were

privileged, the jury’s answers on damages

would rest upon invalidly submitted theories of liability. We hold that, even if the

privilege applied, Chad failed to preserve

jury charge error on this point.

A. Chad’s Qualified Privilege Claim

[1–5] The common law provides a qualified privilege against defamation liability

when ‘‘communication is made in good

faith and the author, the recipient or a

third person, or one of their family members, has an interest that is sufficiently

affected by the communication.’’ Cain v.

Hearst Corp., 878 S.W.2d 577, 582 (Tex.

1994). We have recognized that defamation actions necessarily inhibit free speech

and, thus, the qualified privilege offers an

additional safeguard, even in cases of private, non-political speech. See id. The

privilege operates as an affirmative defense in the nature of confession and

avoidance; the defendant bears the burden

of proving privileged publication unless the

plaintiff’s petition affirmatively demonstrates privilege. Denton Pub. Co. v.

Boyd, 460 S.W.2d 881, 884 (Tex.1970). If a

defendant establishes the privilege, the

burden shifts to the plaintiff to prove that

the defendant made the statements with

actual malice. Dun & Bradstreet, Inc. v.

O’Neil, 456 S.W.2d 896, 898 (Tex.1970).

Actual malice, in the defamation context,

means ‘‘the making of a statement with

knowledge that it is false, or with reckless

disregard of whether it is true.’’ Hagler v.

Proctor & Gamble Mfg. Co., 884 S.W.2d

771, 772 (Tex.1994) (per curiam). Qualified privilege presents a question of law

when the statements at issue employ unambiguous language and where the facts

and circumstances of publication are undisputed. Fitzjarrald v. Panhandle Pub. Co.,

149 Tex. 87, 228 S.W.2d 499, 505 (1950).

Of the ten statements that the trial

court found defamatory per se, Chad made

six of those statements in letters to the

Phillipses, while four appeared on the web

site or posters. Chad argues that a qualified privilege protects his communication

with the Phillipses because both he and

they had an interest ‘‘sufficiently affected

by the communication.’’ The Phillipses obviously had an interest, Chad suggests, in

whether Kirk had the right to sell them a

mausoleum and whether any other Burbage family members objected to interring

the Phillipses at the family cemetery.

Chad contends that the court of appeals

erred when it found the letter unprotected

by the ‘‘common-interest privilege’’; specifically, Chad objects to the court of appeals’ suggestion that ‘‘antithetical’’ interests cannot form the basis for a qualified

privilege. 2011 WL 6756979, at *9. While

the court of appeals seized on the ‘‘common-interest’’ language, which Chad sometimes used in briefing, our case law identifies the affirmative defense at issue here

as qualified privilege.2

2. Compare Cain, 878 S.W.2d at 582 (privileg- ing communication when made ‘‘in good faith
BURBAGE v. BURBAGE Tex. 255

Cite as 447 S.W.3d 249 (Tex. 2014)

[6] The trial court submitted the ten

statements—four unprivileged and six potentially privileged—for the jury to determine if each statement was substantially

true at the time it was made. On damages, the trial court submitted broad-form

questions that incorporated the jury’s answers for all ten statements. If the qualified privilege applied to any statements,

then, the broad-form damages questions

incorporated both valid and invalid bases

for liability. Such commingling may result

in harmful error. Cf. Crown Life Ins. Co.

v. Casteel, 22 S.W.3d 378, 388 (Tex.2000)

(reversing for new trial due to erroneous

commingling of valid and invalid liability

theories in a single broad-form liability

question). To obtain reversal due to such

a charge error, Chad must have preserved

the error at trial. In re B.L.D., 113

S.W.3d 340, 349 (Tex.2003) (‘‘[A]ny complaint to a jury charge is waived unless

specifically included in an objection.’’). We

now turn to this preservation question.

B. Preservation of Charge Error

The court of appeals held that Chad

waived any claim of error in the submission of potentially privileged statements

because he ‘‘did not object in the trial

court to the submission of broad-form

damages questions.’’ 447 S.W.3d at 300–

01 (citing In re B.L.D., 113 S.W.3d at 349).

In In re B.L.D., we held that the court of

appeals erred by reviewing a jury charge

complaint when the parties did not object

at trial to the form of submission. 113

S.W.3d at 349, 355. Chad suggests that

this case differs because he raised an objection on qualified privilege, which preserved error in any derivative damages

question. Kirk responds that Chad must

specifically object to the damages question’s form, not merely to the underlying

liability issue. Kirk further argues that

even Chad’s qualified privilege objection

failed to preserve error.

1. Charge Error Based on Valid and

Invalid Liability Theories

[7] ‘‘It is fundamental to our system of

justice that parties have the right to be

judged by a jury properly instructed in the

law.’’ Casteel, 22 S.W.3d at 388. Thus, in

Casteel, we required a new trial when a

timely and specific objection preserved the

issue of erroneous commingling of valid

and invalid theories of liability in a broadform liability question, such that the appellate court could not determine whether the

jury based its verdict on an improperly

submitted theory. Id. (citing TEX.R.APP. P.

61.1). Extending this principle in Harris

County v. Smith, 96 S.W.3d 230, 234 (Tex.

2002), we determined that a broad-form

damages submission mixing valid and invalid elements of damages created the

same type of harmful error. And in

Romero v. KPH Consolidation, Inc., 166

S.W.3d 212, 225 (Tex.2005), where evidence supported the jury’s negligence finding but not its malicious credentialing finding, we held that the trial court committed

harmful error by submitting an apportionment question which allowed the jury to

consider malicious credentialing. We explained that ‘‘[e]ven if the jury could still

have made the same apportionment of

fault [without considering malicious credentialing], the error in the question is

nevertheless reversible because it effectively prevents [the appellant] from comand the author, the recipient or a third person, or one of their family members, has an

interest that is sufficiently affected by the

communication’’), with RESTATEMENT (SECOND)

OF TORTS § 596 (1977) (describing the common-interest privilege, which arises when

‘‘circumstances lead any one of several persons having a common interest in a particular

subject matter correctly or reasonably to believe that there is information that another

sharing the common interest is entitled to

know’’).
256 Tex. 447 SOUTH WESTERN REPORTER, 3d SERIES

plaining on appeal that they would not

have done so.’’ Id. at 226.

[8] We continue to adhere to these

principles. Yet in addition to the common

animating principle of properly instructing

the jury in the law, these cases share

another link: some timely and specific objection. Romero, 166 S.W.3d at 229; Harris Cnty., 96 S.W.3d at 232; Casteel, 22

S.W.3d at 387. In other words, in situations where a party does not raise a Casteel-type objection, that party surely cannot raise a Casteel issue when it failed to

preserve a claim of an invalid theory of

liability that forms the basis of a Casteeltype error. If we allowed litigants to raise

a Casteel issue with no valid objection,

either to liability or submission form, those

litigants could use a post-trial motion to

raise a lack of evidence on the liability

question, thus bypassing the crucial step of

allowing the trial judge to correct any

errors in the charge.

In Romero, we declined to address

whether the appellant must object both to

the lack of evidence to support submission

of a jury question and the form of the

submission, because in that case the appellant did both. 166 S.W.3d at 229 & n. 55

(acknowledging the difficult question of

whether an additional broad-form objection is required) (citing Pan E. Exploration Co. v. Hufo Oils, 855 F.2d 1106, 1124

(5th Cir.1988)). But whether or not an

objection to both is required, some timely

and specific objection must raise the issue

in the trial court. See Thota v. Young, 366

S.W.3d 678, 691 (Tex.2012) (requiring

‘‘some objection to the charge,’’ whether to

evidentiary support or to form, to preserve

error for appellate review). Here, Chad

objected based on qualified privilege, but

he made no objection to the form of submission. If Chad’s initial objection on

qualified privilege did not preserve error,

we need not address whether a further

Casteel-type objection is required.

2. Specific Objections

[9] Our rules of procedure establish

the preservation requirements to raise a

jury-charge complaint on appeal. Id. at

689. The complaining party must object

before the trial court and ‘‘must point out

distinctly the objectionable matter and the

grounds of the objection.’’ TEX.R. CIV. P.

274; see also TEX.R.APP. P. 33.1. Under

Rule of Civil Procedure 274, ‘‘[a]ny complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless

specifically included in the objections.’’

TEX.R. CIV. P. 274. As a general rule,

preservation requires (1) a timely objection

‘‘stating the grounds for the ruling that the

complaining party sought from the trial

court with sufficient specificity to make the

trial court aware of the complaint, unless

the specific grounds were apparent from

the context,’’ and (2) a ruling. See TEX.

R.APP. P. 33.1. Stated differently, the test

ultimately asks ‘‘whether the party made

the trial court aware of the complaint,

timely and plainly, and obtained a ruling.’’

State Dep’t of Highways & Pub. Transp. v.

Payne, 838 S.W.2d 235, 241 (Tex.1992).

[10] Importantly, the ‘‘purpose of Rule

274 is to afford trial courts an opportunity

to correct errors in the charge by requiring objections both to clearly designate the

error and to explain the grounds for complaint.’’ Wilgus v. Bond, 730 S.W.2d 670,

672 (Tex.1987); see Payne, 838 S.W.2d at

243 (Mauzy, J., dissenting) (‘‘Only by proper objection does a litigant afford the trial

court sufficient opportunity to correct defects in the charge.’’). We apply these

rules to Chad’s objection.

3. Chad’s Objection

The following dialogue occurred at the

formal charge conference:
BURBAGE v. BURBAGE Tex. 257

Cite as 447 S.W.3d 249 (Tex. 2014)

Mr. Cagle: 3 I’m not sure if this is an

objection. I apologize, Your Honor.

But the matter of in the amended—

defendant’s amended—first amendment

to the original response, defendant has

requested that there be a qualified privilege relative to the letter, and the reason for the qualified privilege is it represents common interests, a continuation

of a prior judicial proceeding in Maryland and a continuation of trying to resolve matters of mutual concern between

the parties of the cemetery.

The Court: All right. Do you have a

requested instruction that you’re asking

the Court to consider and to include in

the charge?

Mr. A. Burbage: I have—it seems as

though it would—it would require the—

a question in the line after—after you

find that the statement inflammatory,

then there would be a question do you

find the statement blah-blah-blah was

false at the time it was made as it

related to—

The Court: All right. Anything further

on that? On that particular issue is

there anything further?

Mr. A. Burbage: No. It was—it’s been

mentioned in the testimony.

The Court: All right. The objection is

overruled. The requested instruction is

denied.

[11, 12] Chad claims that the trial

court erred in submitting liability questions on the potentially privileged statements. Therefore, Chad’s objection needed to communicate to the trial court that it

was improper to submit Questions 5

through 10 (on statements in the Phillips

letters) to the jury. The objection does

raise the subject of the qualified privilege.

But, crucially, the objection must apprise

the trial court of the error alleged such

that the court has the opportunity to correct the problem. See Wilgus, 730 S.W.2d

at 672. When the trial court asked Chad

whether he had a requested instruction,

Chad responded only with a request for a

question that appears to address the falsity of the statements themselves. As Chad

has argued, a qualified privilege may still

apply even when the statements are false.

See O’Neil, 456 S.W.2d at 898. It is unclear what Chad hoped to accomplish by

requesting an additional question if he

wanted the court to withhold Question 5

through 10 from the jury.4

 And it is uncertain even to which questions Chad referred (presumably Questions 5 through

10, but the word ‘‘inflammatory,’’ which

Chad uses to describe the placement of his

proposed question, appears nowhere in the

charge). Quite simply, Chad has not provided a specific objection indicating the

alleged error in the charge and allowing

3. The record states that Mr. Cagle, Kirk’s

attorney, initially made the objection. The

reproduction in Kirk’s brief on the merits

instead attributes the objection to Chad. Indeed, it makes more sense in context that

Chad made the initial objection. We decline

to attach importance to this potential record

error because we find either objection insufficient to preserve error.

4. We cannot safely engage in assumptions

about what Chad might have meant. Whether the statements were false and Chad knew

of their falsity—compared with the jury’s actual finding that the statements were not substantially true—would have relevance to the

question of whether Chad acted with actual

malice. But the trial court gave the incorrect

common law definition of malice, Chad did

not object to the incorrect malice definition,

and, as Chad argues, the burden on actual

malice falls to Kirk, not Chad. Such a confusing objection, raised during the crucial

charge conference, could not have apprised

the trial judge that Chad objected to the submission of the offending questions. Chad explained his desire more coherently at a hearing on his request for findings of fact and

conclusions of law, but at that point it was too

late.
258 Tex. 447 SOUTH WESTERN REPORTER, 3d SERIES

the trial court the opportunity to correct

the error.

We note that when Chad wanted to object to a specific question at the charge

conference, he did so. Before the objection on qualified privilege at issue here,

Chad objected to Question 10 because it

duplicated elements of Questions 7 and 8.

The trial court initially sustained this objection (although it reversed that ruling at

the end of the charge conference). Chad’s

objection to qualified privilege, in order to

preserve error, needed to distinctly raise

the issue of withdrawing Questions 5

through 10 from the jury. By its language, it does not do this. And it would

make little sense for Chad to raise an

objection to qualified privilege to eliminate

Questions 5 through 10 when, only moments before, he eliminated Question 10

only because it was duplicative of Questions 7 and 8, not because the Questions 7

and 8 were improper to submit to the jury.

With this in mind, we cannot conclude that

Chad’s intent to remove Questions 5

through 10 was ‘‘apparent from the context.’’ TEX.R.APP. P. 31.1(a)(1)(A). We

hold that Chad’s objection was insufficiently specific and did not preserve his claim of

error in the submission of Questions 5

through 10.

[13–16] Our procedural rules are technical, but not trivial. We construe such

rules liberally so that the right to appeal

is not lost unnecessarily. Arkoma Basin

Exploration Co. v. FMF Assocs. 1990–A,

Ltd., 249 S.W.3d 380, 388 (Tex.2008). But

when an objection fails to explain the nature of the error, we cannot make assumptions. Preservation of error reflects

important prudential considerations recognizing that the judicial process benefits

greatly when trial courts have the opportunity to first consider and rule on error.

In re B.L.D., 113 S.W.3d at 350 (citing In

re C.O.S., 988 S.W.2d 760, 765 (Tex.1999)).

Affording courts this opportunity conserves judicial resources and promotes

fairness by ensuring that a party does not

neglect a complaint at trial and raise it for

the first time on appeal. Id. (citing Pirtle

v. Gregory, 629 S.W.2d 919, 920 (Tex.1982)

(per curiam)). Nor may we stray from

these rules because Chad represented

himself at trial. See Mansfield State

Bank v. Cohn, 573 S.W.2d 181, 184–85

(Tex.1978).

4. Application

Chad argues that the court impermissibly combined valid and invalid theories of

liability when the broad-form damages

question incorporated privileged statements. Chad did not make a Casteel-type

objection to form; thus, to preserve error,

Chad must have raised some specific objection to the submission of Questions 5

through 10. See In re B.L.D., 113 S.W.3d

at 349–50 (holding that a complaint to a

jury charge was waived because it was not

specifically included in an objection). He

did not. Thus, we hold that Chad’s failure

to object waives his right to complain of

the charge on appeal.

III. Damages

We next consider the jury’s compensatory and exemplary damage awards. The

jury awarded Kirk and the Burbage Funeral Home $3,802,000 in compensatory

damages and $5,800,000 in exemplary damages, but the court of appeals reduced

exemplary damages to $750,000.5

 After

reviewing the record, we hold that no evidence supports the amount of compensato5. Chad does not specifically challenge the

$2,000 awarded as mental anguish damages.

Therefore, we do not address those damages.
BURBAGE v. BURBAGE Tex. 259

Cite as 447 S.W.3d 249 (Tex. 2014)

ry damages and, consequently, exemplary

damages cannot stand.

A. Compensatory Damages

Chad argues that the jury’s $3.8 million

award lacks evidentiary support and offends the First Amendment. Specifically,

Chad contends that the $3.5 million awarded for future damages punishes Chad for

his speech, rather than fairly compensates

Kirk for his injury. Kirk responds that

Texas law presumes damages for defamatory per se statements and ample evidence

supports the jury’s awards. Kirk suggests

that trust-based businesses like funeral

homes suffer greatly from the mere insinuation of unseemly acts. Further, Kirk argues that non-media defendants like Chad

fail to present the same First Amendment

concerns as media defendants.

[17–20] Our legal-sufficiency review

standards are well established. On an issue where the opposing party bears the

burden of proof, we sustain a legal-sufficiency challenge to an adverse finding if

our review of the evidence demonstrates a

complete absence of a vital fact, or if the

evidence offered is no more than a scintilla. See Waste Mgmt. of Tex., Inc. v. Tex.

Disposal Sys. Landfill, Inc., 434 S.W.3d

142, 156 (Tex.2014). More than a scintilla

exists when the evidence would enable reasonable and fair-minded people to reach

different conclusions. Ford Motor Co. v.

Ridgway, 135 S.W.3d 598, 601 (Tex.2004).

We regard evidence that creates a mere

surmise or suspicion of a vital fact as, in

legal effect, no evidence. Id. We consider

the evidence in the light most favorable to

the judgment, ‘‘crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.’’ City of Keller v.

Wilson, 168 S.W.3d 802, 807 (Tex.2005).

[21, 22] Texas law presumes that defamatory per se statements cause reputational harm and entitle a plaintiff to general damages such as loss of reputation and

mental anguish. Bentley v. Bunton, 94

S.W.3d 561, 604 (Tex.2002) (plurality opinion). But this presumption yields only

nominal damages. See Salinas v. Salinas,

365 S.W.3d 318, 320 (Tex.2012) (per curiam). Beyond nominal damages, we review presumed damages for evidentiary

support. See Hancock v. Variyam, 400

S.W.3d 59, 66 (Tex.2013).

[23–25] In addition to the legal sufficiency of evidence, we have recognized an

imperative that appellate courts determine

whether any evidence supports the

amount of jury damages. See Bentley, 94

S.W.3d at 606. In Bentley, a judge sued

for defamation after a call-in talk show

host repeatedly made on-air imputations of

corruption. Id. at 566–67. The jury assessed $7 million in damages for mental

anguish and $150,000 in reputation and

character damages. Id. at 605. We recognized that the inherent difficulty in

quantifying such noneconomic damages

necessarily allows the jury latitude. Id.

Yet this latitude has limits; latitude does

not ‘‘give [the jury] carte blanche to do

whatever it will, and this is especially true

in defamation actions brought by public

officials.’’ Id. Even in a case outside the

realm of media defendants and public officials, judicial review of jury discretion remains important to protect free speech.

See id. We must ensure that noneconomic

damages compensate for actual injuries

and are not simply ‘‘a disguised disapproval of the defendant.’’ Id.; see also Gertz v.

Robert Welch, Inc., 418 U.S. 323, 350, 94

S.Ct. 2997, 41 L.Ed.2d 789 (1974) (‘‘[T]he

private defamation plaintiff who establishes liability under a less demanding

standard than [knowledge of falsity or

reckless disregard for the truth] may recover only such damages as are sufficient

to compensate him for actual injury.’’).
260 Tex. 447 SOUTH WESTERN REPORTER, 3d SERIES

Before turning to the evidence, we must

delimit our review. The jury charge sets

the standard. See Osterberg v. Peca, 12

S.W.3d 31, 55 (Tex.2000) (‘‘[I]t is the

court’s charge, not some other unidentified

law, that measures the sufficiency of the

evidence when the opposing party fails to

object to the charge.’’). Questions 11 and

12 asked what sum of money ‘‘would fairly

and reasonably compensate’’ for injuries

sustained. The trial court instructed the

jury that ‘‘[y]ou must make a finding of at

least nominal damages for injury to reputation in the past.’’ In response, the jury

awarded $300,000 to Kirk and the Burbage

Funeral Home. But on future reputation

damages, the court instructed the jury to

determine the appropriate compensation

for injury ‘‘that, in reasonable probability,

[Kirk] will sustain in the future’’ (and did

not require the jury to find at least nominal damages). The jury awarded a combined $3.5 million in response. We must

conduct a meaningful appellate review of

the jury’s determination of an amount that

‘‘would fairly and reasonably compensate’’

for the loss.

With these principles in mind, we turn

to the evidence. Chad and Kirk vigorously disagree about the defamation’s effect

on the Burbage Funeral Home’s business.

The court of appeals upheld the large compensatory damage award in part because

the funeral home ‘‘had a market value of at

least $3 million and TTT this value would

likely be lost because of Chad’s statements.’’ 447 S.W.3d at 302. The court

stated that Kirk was not required to substantiate the value with documentary evidence. Id.

[26] Although we agree that the jury

generally has broad latitude in determining damages, we find no evidence of actual

injury in the record. To begin, we cannot

credit the purported value of the funeral

home business (leaving aside that this does

not reflect actual damage to reputation).

Kirk reluctantly offered a questionable estimate of the funeral home’s value:

Q. If you sold the funeral home today,

what would the value of that funeral

home be—of the business, as an

ongoing business?

A. I never had any intention nor do I

have any interest in selling the funeral home, so I never really—if I

had to throw something out there

and just—this is just from experience with hearing about other firms,

but I don’t—I don’t really know.

I’d say a few million dollars.

This estimate is practically and linguistically troubling. Practically speaking, Kirk

admits in the previous sentence that he

does not know the value, and the phrase

‘‘if I had to throw something out there’’

qualifies his response. We require some

concrete basis for an estimate. Cf. Nat.

Gas Pipeline Co. of Am. v. Justiss, 397

S.W.3d 150, 159–61 (Tex.2012) (concluding

that speculative and conclusory testimony,

lacking in demonstrable factual explanation, could not support an award of damages based on diminished market value of

a home in a permanent nuisance claim).

And Kirk’s language adds ambiguity.

How many is a few? The court of appeals

interprets this as at least $3 million, but

this is not clear: definitions of ‘‘few’’ vary.

See, e.g., AMERICAN HERITAGE COLLEGE DICTIONARY 505 (3d. ed.2000) (‘‘[b]eing more

than one but indefinitely small in number’’); RANDOM HOUSE DICTIONARY OF THE

ENGLISH LANGUAGE 712 (2d. ed.1987) (‘‘not

many but more than one’’); WEBSTER’S

THIRD NEW INTERNATIONAL DICTIONARY 843

(1961) (‘‘not many persons or things’’).

We recently addressed an analogous situation in Waste Management of Texas,

Inc. v. Texas Disposal Systems Landfill,

Inc., 434 S.W.3d 142 (Tex.2014). In that

case, the key evidence of injury to Texas
BURBAGE v. BURBAGE Tex. 261

Cite as 447 S.W.3d 249 (Tex. 2014)

Disposal Systems’ reputation was its

CEO’s testimony estimating the value of

its reputation at $10 million, and three

exhibits purportedly supported that testimony. Id. at 160. The exhibits estimated

lost profits and evidenced a decrease in

‘‘base business.’’ Id. First, we held that

damages such as lost profits ‘‘are not the

sort of general damages that necessarily

flow from such a defamatory publication.’’

Id. Then, we stated that the ‘‘evidence

must support the amount awarded by the

jury; it must not be an ‘indicator’ that

supports the estimates offered by the corporate executive.’’ Id. Turning to this

case, Kirk provided even less evidence

than the ‘‘indicators’’ we found insufficient

in Waste Management. Kirk’s ballpark

estimate of the Burbage Funeral Home’s

value does not equate to evidence of actual

damages for injury to the business’s reputation.6

The record contains only speculative evidence that the value, if established, ‘‘would

likely be lost,’’ as the court of appeals

found. See 447 S.W.3d at 302. Questioned

whether the defamation could destroy the

funeral home’s reputation, Kirk said:

‘‘[P]otentially. In my opinion.’’ Kirk said

the value would be ‘‘zero’’ only when questioned on what would happen if the funeral

home was ‘‘run out of business.’’ Keith,

Kirk’s brother, testified that, in a small

community, such allegations ‘‘can ruin that

entire business.’’ A theoretical possibility,

however, is a far cry from a likely event.

Similarly speculative evidence supports

the actual impact on the funeral home.

Kirk testified that some customers, including customers with previous business at

the funeral home, cancelled pre-paid contracts:

Q. Since these allegations have been

made, have you had people who

have cancelled those?

A. Yes, I have.

Q. Even as recently as last week?

A. Yes, sir.

Q. Have you ever asked them why

they’re cancelling it?

6. Furthermore, the purported evidence on the

value of the business blurs the lines between

the torts of business disparagement and business defamation. In Waste Management, we

noted ‘‘the similarity between the two claims,

but that one difference is that one claim seeks

to protect reputation interests and the other

seeks to protect economic interests against

pecuniary loss.’’ 434 S.W.3d at 155 (citing

Forbes, Inc. v. Granada Biosciences, Inc., 124

S.W.3d 167, 170 (Tex.2003)). The publication

at issue in that case was defamatory of the

owner of the business, and not the landfillservices business itself. Id. at 150–51 n. 35.

In other words, defamation injures the reputation of the owner, not the owner’s business.

Id. In a defamation per se claim, general

damages are presumed, while special damages are not; special damages, on the other

hand, are an essential element of a business

disparagement claim. Id. at 155. We distinguish between ‘‘general damages (which are

non-economic damages such as for loss of

reputation or mental anguish) and special

damages (which are economic damages such

as for lost income).’’ Hancock v. Variyam,

400 S.W.3d 59, 65 (Tex.2013).

Turning back to this case, Kirk seems to

seek damages to the business, rather than

damages for loss of the business’s reputation.

This fine distinction matters. If Kirk desired

damages to protect the economic interests of

the Burbage Funeral Home, a business disparagement claim provides the correct vehicle. See Forbes, 124 S.W.3d at 170. And,

whether under defamation or business disparagement, we require a plaintiff requesting

special damages to prove those damages. See

Hancock, 400 S.W.3d at 66. Here, the type of

damages Kirk seeks, economic damages, are

distinct from the noneconomic damages that

are presumed in a defamation per se case.

Kirk did not plead these special damages and

certainly has not proven them. Kirk could

have brought business disparagement or defamation claims (or both), but in any case his

proof will not suffice for recovery of special

damages.
262 Tex. 447 SOUTH WESTERN REPORTER, 3d SERIES

A. Couldn’t bring myself to.

Q. Are you afraid its because of these

accusations?

A. Yes.

In Hancock v. Variyam, a doctor claimed

that the submission of a defamatory letter

to an accrediting body, which later denied

the doctor accreditation, provided evidence

of reputation damages. 400 S.W.3d at 70.

This Court held that ‘‘a jury may not

reasonably infer an ultimate fact from

‘meager circumstantial evidence which

could give rise to any number of inferences, none more probable than another.’ ’’

Id. at 70–71 (quoting Hammerly Oaks,

Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex.

1997)). Similarly, the jury cannot reasonably infer that defamation caused the cancellations when the cancellations could

have occurred for any number of reasons.

Indeed, Kirk admitted that he did not ask

why the customers cancelled, only that he

was ‘‘afraid’’ it was because of accusations.

Some evidence does suggest community

awareness of and discussion of Chad’s

statements. And Chad, in earlier menacing letters, suggested that the statements

would have ‘‘significant repercussions.’’

But in terms of actual impact of the defamation—the basis for which the damage

award compensates—Kirk offered only

vague testimony:

Q. How would you say that these accusations have affected your reputation in the community? Do you still

have one?

A. I’d like to think that I do. I’d like

to think that there’s those people

that know me and—that truly know

me and that they’re going to give it

credence. Sure, they’re going to

listen up, because they’d be stupid

not to, but I’d like to believe that—

you know, that it—that it doesn’t

affect everybody. I’d like to believe

that.

Q. But you don’t know.

A. No, I don’t know.

Kirk’s mother, Virginia, when asked about

the impact on the Burbage family name,

said ‘‘I’m sure it could hurt some, but I

think most people would not believe it.’’

Further, Kirk’s testimony undermines the

scope of the impact on him, personally:

Q. You don’t advertise with your photo

anywhere or your name anywhere?

A. No, sir.

Q. Have there been any newspaper articles about you in conjunction with

the funeral home or community service?

A. Not that I can recall anyway.

Q. Are you the only funeral director

there at the Burbage Funeral

Home?

A. No. There are three others.

Q. Are you—are you—Anna Burbage

was the face of the Burbage Funeral Home; is that right?

A. In her lifetime.

Q. Are you considered the face of the

Burbage Funeral Home?

A. I don’t know if I would be considered the face because I don’t meet

with a lot of the families any more

unless it’s a family that I know.

That’s what I have the other directors to do. I’m a lot more behind the scenes.

[27] The court of appeals distinguished

Bentley as a public-official case. 447

S.W.3d at 301. While the concern for

baseless jury awards has stronger resonance in public-official cases, such concerns are not absent here. The evidence

does not show actual loss of reputation,

that anyone believed the defamation, that

the Burbage Funeral Home suffered an

actual loss, or even the funeral home’s

actual value. On the record here, we hold
BURBAGE v. BURBAGE Tex. 263

Cite as 447 S.W.3d 249 (Tex. 2014)

that no evidence supports the jury’s award

of $3.8 million in actual damages. We reverse the judgment of the court of appeals

in part.

B. Exemplary Damages

[28] A party may not recover exemplary damages unless the plaintiff establishes

actual damages. Hancock, 400 S.W.3d at

71. Because we hold that no evidence

supports the jury’s award of actual damages, exemplary damages are not available. See id.

IV. Prohibitive Injunction

[29] As part of its final judgment, the

trial court permanently enjoined Chad

from ‘‘publishing, disseminating or causing

to be published or disseminated, TTT to

third-parties by any means, TTT any statement or representation that states, implies

or suggests in whole or part’’ any of four

pages of forbidden topics. The injunction

tracks the language of the ten defamatory

statements, and for many statements the

injunction lists numerous ways Chad may

run afoul of the court’s order. For instance, Chad may not assert that he or

any third party suffered from any of

Kirk’s selfish, greedy, or unlawful actions.

This extraordinarily broad prohibition on

future speech need not detain us long.

Prohibitive injunctions of future speech

that is the same or similar to speech that

has been adjudicated to be defamatory

operate as impermissible prior restraints

on free speech.7

 Kinney v. Barnes, 443

S.W.3d 87, 92–93 (Tex.2014). Under Kinney, the trial court’s prohibitive injunction

cannot stand. Therefore, we affirm that

part of the court of appeals’ judgment.

V. Conclusion

Chad failed to preserve for appeal his

complaint of the jury charge; thus, we do

not reach whether a qualified privilege

protected any of Chad’s statements. We

therefore affirm in part the court of appeals’ judgment. We do, however, hold

that no evidence supports the jury’s award

of compensatory damages, and that exemplary damages cannot stand. We reverse

that part of the court of appeals’ judgment

and render judgment that Kirk and the

Burbage Funeral Home take nothing as

compensatory and exemplary damages on

their defamation claims. See MBM Fin.

Corp. v. Woodlands Operating Co., L.P.,

292 S.W.3d 660, 666 (Tex.2009) (recognizing that ‘‘where the record shows as a

matter of law that the plaintiff is entitled

only to nominal damages, the appellate

court will not reverse merely to enable him

to recover such damages’’ and instead rendering a take-nothing judgment). However, we do not reach mental anguish damages because Chad made no challenge in

this Court. Finally, we hold that the prohibitive injunction impermissibly restrains

speech; therefore, we affirm that part of

the court of appeals’ judgment.

,

7. A mandatory injunction requiring the removal or deletion of posted speech that has

been adjudicated defamatory is not a prior

restraint on speech. Kinney v. Barnes, 443

S.W.3d 87, 89 (Tex.2014). But here the injunction did not require Chad to remove or

delete any previously-made defamatory statements. Although Chad published several defamatory statements to his website and on

posters, the website was only operative for

approximately four months and the posters

had been removed by trial.