### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00359
- CV

Theodore Reese Kerr, Jr., Individually; and Cowpuncher Investments , LLC d/b/a Cowpuncher Services, Appellant s

v. Robert W. Lambert and Linda C. Lambert, Appellee s

FROM THE 33RD D IS TRICT COURT OF SAN SABA COUNTY NO. 9656, THE HONORABLE J. ALLAN GARRETT, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
Appellants Th eodore Reese K err, Jr., and Cowpuncher Investments , LLC d /b/a Cowpuncher Services (Cowpuncher) , appeal from th e t r ial cou rt ’ s judgm ent rendered after a bench trial in fa vor of Robert W. Lambert an d Linda C. Lambert (the Lamberts) on their cl aims that Kerr and Cowpuncher da maged tree s on their p roperty while spraying herbicid e. We w ill affirm the trial court ’ s jud gm e n t.

BAC KGROUND

In August 2014, the Lamberts purc hased approximately 125 acres of ranch land in San Saba County (the Property ) intending to make it a country home for them and th eir son ’ s family. After purchasing the P roperty, the Lamberts wan te d to c l e ar cedar and mesqui te trees and remove post oak and li ve oa k tr ee s that had died on the Property as a result of a severe drought in 2011

. The Lamberts also wanted to eradicate cactus tha t was gr owing throughout2

the P roperty

. In December 2014, Jim Bob Ar m es cleared ce dar and me s quite trees from the Prop erty

. Armes said he could remo ve the cactus u s ing a tractor and blade , but the Lamberts did not want to use that method because it would creat e large piles of dirt and dead cactu s. Armes suggested that th e Lambe rts contact Kerr t o see if he could kill the cactus using an herbicide. Robert Lambert contact ed Kerr in December 2014. Kerr came to the p roperty on December 15, and the two discu ssed the work and the fees Kerr wou ld charge. Kerr stated that h e w o uld spray the cactus wit h an herbi cide

. The spraying commenced the ne xt day and was co mpleted by the first week of February 2015

.

The Lambert s hired Buddy Miller to clear the property of the dead oak trees. In January , February, and Marc h 2 015, Mille r cut and burn ed the dea d oak t rees. The work was delayed because of damage to Mil ler ’ s equip ment, but he returned to complete t he burning in May and June 2015. By March 2015, Miller had cut down 470 dead oak trees that were on the P roperty

. In May 201 5 , Gary Jennings, who owned lan d adjoining the Lamberts and who had grown up in the area, visited Robert Lambert and told him that it looked to him like the Lamberts ’ oak trees were dying. Jennings believe d that the trees on his land and on other adjacent l and looked health ier than those o n the Lamb erts ’ land

. Lamber t and Jennings tour ed the Prop er ty and Lambert agreed that his trees looked different from trees on the ad j oining propert ies and that it appea red that his trees had about one

- third to o ne - four t h fewer leaves tha n the trees on t he east side of his fence line. Lambert immediately called Kerr and told him about the apparent damage to his trees. Kerr told Lambert th at he ha d sprayed an herbi cide called Picl or am 22K on the trees and that Picloram w o uld not kill oak trees. Kerr called Lambert l ater3

and told him that the person who h a d sold him the Picloram 22K had driven by the Property and did not think that Picloram caused damage to the trees.

Lambe rt then hired Michael J. W alters che i d t, an arb o r ist, to assess the trees on the Property. Walterscheidt told Lambe rt that the oak trees on the Prop erty were dying. Hoping th at the trees would survive, th e Lambe rts w aited until the spring of 2016 to reassess the trees

. That spring, Walterscheidt retu r n ed to the property and he and Lambert tagged over 1,000 oak trees on the Property t hat were either dead or that, in Walters che i d t ’ s opinion , had no chance of survi ving. The Lamberts sued Kerr and Cowpuncher in October 2016 alleging causes of action for v iolations of the Deceptive Trade Practices

- Consu mer P rotection Act (DTPA) , see Tex. Bus. & Com. Code §§ 17.41

- .63, fraud, negligence, and negligent misrepre sentation. The Lamberts alleged that Kerr, individually and as an agent for Cowpuncher, advised R o b er t Lambe rt that the main chemical that would be used to kill the cactus w as Picloram, which Ke rr assured Lamber t would not hur t the trees on the Property. The Lambe rts alleged that they relied on th is representation and paid Kerr $23,400 to sp ray herbi c i de containing Picloram on the Property. The Lamberts allege d that despite Kerr ’ s assurances, the Picloram solution sprayed on

t he Property “ proved to be le thal to hundre ds of t ree s ” on the Property and that “ at lea st 1,000 trees have been killed or seve r e ly injured in areas where [K err and Cowpuncher] sprayed the subject solutio n to elimin ate the cactus. ” In October 2018, the Lamberts amended their petition

to assert a cause of action for breach of contract, alleging that Kerr breache d a co nt ract “ to s a f e ly apply a chemical solution t o the prickly pear on [the Lamberts ’ ] propert y. ”

After a bench trial, the tr ial court rendered judgment in the Lamberts ’ fa vor on each of their claims and awarded the m $151 ,950 in damages . The court also awar ded the4

Lambe r t s ’ $34,526.38 in attorneys ’ fees , conditional appellate attorneys ’ f ee s , and pre - a nd post

judgment intere st. A f

ter the trial court filed fin dings of fact and conclusions of law, Kerr and Cowpuncher perfected this appeal.

DISCUSSION

On appeal , Kerr a n d Cowpuncher challenge the legal sufficiency of the evidence supportin g a number of the trial court ’ s findings of fact. They also challenge several of the trial

court ’ s conclusions of law. In an appeal from a bench trial, the trial court ’ s findi ngs have t he same wei ght as a jury verdict. See Anderson v. City of Seven Poin ts , 806 S .W.2d 791, 794 (Tex. 1991). When the appellate record contains a reporter ’ s record, as it does in this cas e, f inding s of fact are not conclusive and are binding only if su ppor ted b y the evidence. See HTS Servs., Inc. v.
H allwood Realty Partners, L.P

. , 190 S. W .3d 108, 111 (Tex. App.

— Ho us t o n [1 st Dist.] 2005, no pet.). We review a trial court ’ s findings of fact under the same legal and factual suffic i ency of the evidence st anda rds u s ed when determining if sufficient e vidence exist s to support an answe r to a jury question. See Catalina v. Bl asdel , 881 S.W.2d 295, 297 (Tex. 1994). In reviewing the legal su fficiency of the evidence, we v iew the evidence in the light most favo rabl e to t he verdict , crediting favorab le evidence if reasonable jur ors could, and disr egarding contrary evidence unless reasonable jur ors could not. City of Keller v. Wilson , 16 8 S.W.3d 802 , 807 (Tex. 2005). The test for legal sufficiency is whether the evid enc e w ould enable reasonable people to reach the judgment being review ed. Id. at 827

- 28. When the appellant challenges the legal sufficiency of an adverse fi nding on which h e did not have the burden of pro of at trial, he must demonstrate that there i s no ev id e nce to support the adverse finding. Pete Dominguez Enters., Inc. v. County of Dallas , 188 S.W.3d 385, 387 (Tex. App.

— Dallas 2006, no pet.). Such a challenge fa ils if5

there is more tha n a scintilla of evidence to support the findi ngs. See Formo sa P las ti c s Corp. USA v. Presidio Eng ’ rs & Contractors, Inc. , 960 S.W.2d 41, 4 8 (Tex. 1998); see also King Ranch , I n c. v. Chapman , 118 S. W.3d 742, 751 (Tex. 2003) (more than sc intilla o f evidence exists when evidence “ ris es to a level that would enable rea sona ble a n d fair

- mind ed people to dif fer in their conclusions ” )

.

In a benc h trial , the trial court, as fa ctfinder, is the sole judge of the credibility of the witnesses. Southw estern Bell Media , Inc. v. Lyles , 825 S.W.2d 488, 493 (Tex. App.

— Houston [1st D is t.] 19 92, wr it denied). If the evidence falls “ within the zone of reaso n able di sagreement , ” we will not substitute our judgment for that of the fact finder. City of Keller , 168 S. W.3d at 8 22. We review a trial court ’ s conclusions of law under a de no vo s tan dar d of review. BMC Software Belg

. , N. V. v. Marchand , 83 S .W.3d 78 9, 794 (Tex. 2002).

Issue One

— Chal le nges to Findings of Fact

In their first issue, Kerr and Cowpuncher challen ge the eviden tiary su pport for several of the trial court ’ s finding s . Al tho u gh Kerr and Cowpuncher do not specif y in their statement of issue s whether they challenge the legal or factual sufficiency of the evidence, or both, th e sta ndard of review set for th in the ir brief address es on ly legal sufficiency challenges to

ev iden ti ary fi n dings an d they contend tha t “ no evidence ” supp orts the challen ged findings. Moreover, in their prayer for relief, Ker r and Cowpuncher as k that we reverse and render judgment on the li ability issues rather than reverse and remand

. Because the former i s th e appropriate remed y fo r a legal sufficiency challenge, and th e latter is only appr opriate when

we sustain a factual sufficiency c omplaint, we construe Ke r r and Cowpuncher ’ s arguments as challenging o nly the lega l sufficiency of the evidence. See Fr en c h v

. Moore , 169 S.W.3d 1, 1 56

(Tex. App.

— Houston [1st Dist.] 2004, no pe t.) (pa rties ’ prayer for rendi t ion presents legal sufficiency challenge). Th e challenges to individual findings of fact we re presented as sub

issu es A through J

. Legal Suf f iciency o f Fin d ings Related to Reliance Section 17.46 of the DTPA pro v id es a “ lau ndry lis t ” of specifically prohibited

acts. See Tex. Bus. & Com. Code § 17.46(b); He lena Chem. Co. v. Wilkin s , 47 S.W.3d 486, 501 (Tex. 2001). The Lamberts alleged caus es of actio n unde r DTPA sub section s 17.46(b) (5), (7), and (24)

. To reco ver under DTPA se ction 17. 46(b), a consu mer must sh ow that he detrimentally relied on the defendants ’ false, misleading, or deceptive act or prac tice. Tex. Bus. & Com. C ode § 17 .5 0(a)(1)(B); Cru z v. Andrews Restora tion , I n c. , 364 S. W .3d 817, 823 (Tex. 2012) ( “[U]nder 17.50(a)(1), a consumer loses without proof that he relied to his detr iment on the deceptive

act

. ”). Lambert alleged that he relied on Kerr ’s a ssurance to him that Pic loram would no t harm his tr ees and tha t he would n ot have hired Kerr had Kerr disclosed to him that t he herbic ide he was going to spray on the Proper ty c ould harm the trees or damage the Property. The trial cour t fou nd that “ Plaintiffs would not have eng a ged Defenda nt Ker r had they known tha t sp rayi ng with Piclora m posed a danger to the trees on their propert y. ” Wi thout further elaboration or briefing , Ker r and Cowpunche r assert in sub

- issue A that the evidence presented at trial is leg ally
i nsu fficient t o support t hi s finding.

Robert Lamb e rt testified at trial that when he first met with Kerr he asked Kerr whethe r the chemical he intended to use “ would possibly hurt the trees and the answer was no. ” Lamber t test ified that Kerr stated that the herbicide he was goi ng to use did not ki ll tre e s. Lambert provi de d the following testimony about his first meet ing with Kerr :7

Q: And w hat would you have done if [Kerr] had tol d you th ere was a chance of that spray hurting your t rees? A: I wouldn ’ t have hired him

. Q: And w hy i s that? A : T he trees are r e ally valuab le to me. I wouldn ’ t take the risk of hurting th em.

Lambe rt ’ s un controverted testimony that he would not have hired Kerr if he had been told there was a chance that the herbicide Kerr p lanned to use on the Property w ould hurt his trees is evid e nce that is legally sufficient to support the tri al court ’ s finding. See King Ranch , 118 S.W. 3d
at 751. We overrule sub

- issue A.
Legal Sufficiency of Findings Related to Causation

In sub

- issue s B and C, Kerr and Cowpuncher chall enge the su ff ici e ncy of t wo of the trial court ’ s findings related to cau satio n . The trial cour t found:
After [Kerr and Cowpuncher] had app lied herbicide to [ the Lamberts ’ ] land and after [the Lamberts] had removed the t rees that h ad died in the 2011 drou ght, hundred s of m ore trees died on [the Lamberts ’ ] land as a result of the he rbicide application. The he rbicide [Kerr and Cowpuncher] sprayed was harmful to the trees on the land, eve ntually killing numerous tre es belon g ing to [th e Lamberts] and damag ing [the Lambert s ’ ] l a nd.
At trial, several witnesses pro vided testimony regarding whether the herbicide application killed or damaged oak trees on the Prope rty. Michael J. W alterscheidt, an ar borist with a Ma ster of Science degree in both For estry and Pl ant Pathology an d a d o ctorate in Plant Pathology, testi fied that , in his opinion , 1, 010 trees on the Property , w hich he had c atalo gued and identified in an exhibit admitted into evidence at trial , were kille d or damage d by th e herbicid e applied to the8

Lamb erts ’ land in De cembe r 2014 through February 2015. Walterschei dt tes tified that his opinion was based on his observation s tha t ( 1) in May and early June 2015, after the Lambe rts had cleared the trees killed by the 2011 droug ht from th e Property, more tree s on the P ropert y

wer e dead or dying , (2) there were no newly dead or dying trees on adjoining propert ies; (3 ) the presence of d y ing trees “ s topped ” at th e Lamberts ’ fence lines, and (4) there was a correl ation betw een sick a nd dying t rees and th e presence of dying prickl y pea r cac t us under th ose tree s. Walter scheidt also testified th at he based his opin ion in part on the fact that the label for Picloram 22K , the herbicide that was sprayed on the Property, state s that it “ c on trols ” liv e oak and cautions aga inst spraying u nder “ desir able ” tr ees. Walter scheidt also determined that t here was no oak wilt present on the Property and eliminated t hat disease as a possible c a u se of the trees dyi ng. Gary Jennings, an adjoini ng lan do wner who se family had owned land in the area , i ncludi ng the La mb er ts ’ property , since the 1920s, testified t hat he did not notice any signif icant tree death on the Prop erty after 2012 until he noticed trees dying on the P roperty in May 2014. Jenning s st at ed that th e 2011 drought in the a rea w as severe and da maged black jack oaks, post oaks, and u ltimat ely live oaks , but that by 2014, there were no more trees dying due to the drought. J ennings testified th at when he noticed trees on the Lamberts ’ property dy ing in May 201 5 , he alerted Robe rt Lambert of the iss ue and the tw o of them tour ed the Property. Jennings

o bserved that where th ere was pric kly pear cactus that was d e ad or dying , the t rees nearby were also d ead or dying and that in areas where the cac tus was “ aliv e and w ell, ” the trees w ere also

“ al ive and well. ” Jennings s tated that he was aware that the Lamberts had cleared the trees that died after the 2011 drought in th e summer of 2014 and that the trees that remained on the Property had looked he alt h y u ntil M ay 201 5. Jenni ngs tes tified that in May 20 15, the trees on9

hi s land and the land east of the Property l ooked he althier than those on the Property. Jennings had ob served the herbicide application on the Property in early 2015 and described it as “ pr etty b road ” spra ying , using a large indust rial sp rayer from the back of a pic kup truck. Jennings testified tha t he believed th at because the trees near cac tus that had be en sprayed wer e mostly dead and the trees near cactus that had not be en sprayed we re “ alive and well , ” it was the application o f the h erbicide that ca used the trees on the P ro perty to die.

Kerr an d Cowpuncher argue that Walterscheidt ’ s and Jennings ’ opinion s that Piclo ram killed the oak trees is only “ circumstantial ” and was contradic ted by evi dence tha t there is “ zero cha nce ” t ha t Pic loram killed the trees; evidence th at a reasonable factfinder could not di s re gard. Kerr and Cowpuncher point to e vidence presented by th re e witnesses

—Zane Willard, Troy Ruffin, and John Be gna ud.

Zane W il lard is a regiona l manager fo r Alligare, LL C , the company that manufactures the herbi c ide us e d on the P ro perty, Picloram 22K. Willard has sold range an d pasture herbicides for ten years an d is a specialist for all range and pa sture herbicides used in
Te xas, O klah oma, and N ew Mexico. Willard testi fied ex te nsively about the labe l for Picl o r am 22 K. Willard stated that h erbicide labels are “ the law ” w hen it comes to application and use and failing to use an he rbicide according to the label is illegal. Willard testified that Pic loram i s used fo r broa d l eaf and cactus cont rol and t h a t h e is n o t a w a r e o f a n y i n s t a n c e i n w h i c h P i c l o r a m h a s k i l l e d a t r e e . Wi llard stated that he o ften sprays Piclor am over the top s of o ak trees with “ zero fear ” that it will hurt or kill th e trees.

T h e labe l f

o r Pic lora m sta tes tha t it is a “ restricted use ” pesticide t hat “ may injur e (p hytotoxic) susc ept ible, non

- t arget plants. ” The label states tha t Picloram is used “ [f]or control of susceptible annual and peren nial broadleaf weeds, woody plants, and vines , ” t hat it i s “ tox ic to10

s ome plants at very low concentrations , ” an d that “ non - ta rget pl ants may be adversely affected
if p estici de is allowed to drift f rom areas of appl ication. ” Th e label instructs that it not be allowed to contact “ desirab le broa d leaf pl ants inclu ding, but n ot limited to . . . shade trees. ” The labe l also st ates th at “ [u]ntreated trees can occas io nally b e affected by root uptake of herbic ide through movement into the tops oil or by excretion of the product from the roo t s of nearb y trea ted
trees. D o not appl y Alligare Picloram 22K within the root zone of des irab le trees unless such injury can be tolerated

. ” Listed amon g th e woody plants “ controlled by Alli gare Pic l oram 22K ”

are “ o ak, live ” and “ oak, spp. ”

When asked about the label, Wi l lard test ified that t he refere nce to “ oak, live ” and

“ oa k , spp. ” in the list o f woody plants controlled by Pic loram m ean t that Picloram is used for

“ oak suppression ” 1 using the “ br oadcast stubble treatment ” me thod described e lsewhere on the label , which he testi fied was the “ s pecific rule ” on the label for oak tre es . 2 W illard agree d that any herbicide, su ch as Picloram, ca n affect any plant if use d in high enough concent ratio ns and that Picl oram could affect trees through their roo t syste m. When as k ed abo ut t he label ’ s cauti o n against allowing Picl oram to contact desirable tr ees such as “ shade trees , ” Willa rd stated t hat you

1 In other sec tion s of the lab el, th e word “ supp ression ” is spelled out , not ab brevia ted as “ spp. ” Walt er scheidt had testified th at the Picloram label states th at it cont rol s “ live oak and other oak species. ” Waltersch e i dt ’ s testimony th at “ spp. ” indicat es “ species ” a s op posed to

“ su ppress ion ” is consistent with the dictionary defini tion of “ spp. ”

. Se e Merriam

- Webster Dictionary, www.merriam

- webster.com/dictionary/spp . (last visit ed October 20 , 2020) (defin ing

“ spp. ” as ab brevia tion for “ species (pl) ” ).

2 The label does not sta te that the “ b roa d cast stubble me thod ” is the only way that Picloram can be used to control o ak trees or that using Picloram pu r s u ant to the “ broadcast stubble method ” is the only wa y th at Piclor am can co ntrol or cau se inj ury to oak trees. Instead, the “ b roadcast stubble meth od ” is inc luded in a section describi ng “ special application methods ” as a way to “ prevent resprouting o f su sceptible woody speci e s after mowing or hand

- cutting on n on - crop area s and rights of wa y. ”11

could debate the defini tion of a “ shade tree ” but t hat h e has and would recommend using Picl oram around oak trees and th at Picl ora m c a use s “ zer o mor tality ” when used on trees.

Troy Ruffin is an outside s ales representative for Animal Health Inte rnational and sold the Picloram to Kerr and Cow puncher that they use d o n the Property. Ruffin testified that he has observ ed t he use an d e ffe cts of Pic loram on ra nge lan d and that according to the label it is

sa fe to use around live oak trees . Ruf fin sta ted th at the way to kill an oak tree with Picl oram is by cut ting the tree and applying Picloram to the stump. Ruffin interpret ed the t e rm “ oa k sp p. ” on the label to mean Picloram can be used for oak tree “ suppress ion , ” which he t estified meant

“ keeping it at bay ” rather than killin g it. Ruffin stated that he has seen Picl oram cause damage to

a tree ’ s foliage but ne ver kill a tr ee. Ruff in t es t ifi ed that he visite d the Property after it had been sprayed , and he did not notice that t he tree s looked any diff erent ly from the trees on adjac ent propert ies. Ruffin obser ve d some live trees that had dead cactus under them but did not recal l seeing a ny l i ving cactus und er any dead tre es. Ruffin tes tified that he told Kerr he believed the dead trees on the Property h ad died because of the 2011 drought but admitted that h e was

unaware when he made that observation that th e Lamberts h ad a lready cl eared the P roperty of

tree s that had died because of the 2011 drought

.

John Begn aud has a Master of Science degree in hortic ultu re and was a ho rticultur ist in San Ang elo for 33 years

. Beg naud visited the Property in September 2016. Begnaud tes tified th at t h e t rees on the Proper ty had thinned and weaken ed canopies and th at the Property loo ked similar to other land in the area wher e the trees had suc cumbed to in jury
f rom the 2011 drought. B egnaud stated that the P roperty seemed to have a similar numbe r o f dead tre es as othe r land in the area that had trees killed by the 2011 drought. Beg na u d observed

t rees on the Property that had hypoxylon c ank er, a di sease caused by secondary pathogens to12

which drou ght strick en trees are suscep tible

. Beg naud s tated tha t h e w as una ware unt il tri al that the Lamberts had already removed the trees killed by the 2011 drought in early 2015.

Beg naud testi fied that if Picloram was misapplied, it could cause injury to a tree but that it was not “ a true k iller of oak. ” Begnau d sta te d that trees that we re stre ssed because of a drought or other disease or by a late freeze could be more susceptible to injury, but t hat it is “ a cumulative thing ” and he could not identify on e dis crete c ause of tree death. I n Begnaud ’ s opin ion, many facto r s wer e at play that ca used the trees to be weak and although people might have their opini on, he didn ’ t thin k that anyone could say that it was definitively Picloram tha t killed the trees. Be gnaud exp lained t hat each tree is genet ically dif fer ent c ausing them to respond dif

fer entl y to and have a varied susceptibility to Picloram and that he ha d no sc ientific proof that Picl oram killed the trees on the Property . Begnaud stressed that while Pic loram could have been a factor in causing the tre es to di e, “ no body h as enough fact s to kn ow unequ iv oc ally what ki lled ” the trees. Begnaud stated that no one could say “ without a d oubt ” that Picloram killed the trees and that that was the only standard he could use becau se he had no way to assign
percen tage s to the v arious causes such a s droug ht, hypox ylo n canker , an d exposure to Picloram. Beg naud was insist ent that the factfinder understand that , in his opinion, multiple factors contri buted to c ause the trees to die. Begnaud agreed that , altho ugh in h is opini on it w as unl ikely, Piclor am could kill live oak trees if sprayed on the leaves, that Piclor am can leach into soil and kill susc eptible trees such as pecan tree s, that you should not spray Picloram unde rneath the canopy or o ver the root system of a tree, a nd tha t it wo uld be a “ goo d thin g ” not to spr ay Picloram immediately upwind of desirable tre es.

Wa ltersche idt and Beg naud, two horticultur i sts, testifie d that Picloram c an cause injury to oak trees. Begn aud t esti fied that he believed the tree d e aths cou ld have been c aused by13

the cumulat ive effect of st ress, secondary d ise ase , an early free ze, and exposure to Picloram

. Begnau d stated that he could neither say that , without a d oubt, Picloram alone killed the trees nor could he assign a percentage to P icloram ’ s ro le in kill ing t he tree s. Walte r sche idt testified that in his opinion, b ased on his observ ation of the trees on the Property and his review of the P iclor am label, applic ation of that herbicide ca used the trees t o die. Willard and Ruffin , who a re not h orti culturists or p lant pa thologist s , provided anec dotal e videnc e of sprayi ng Picloram on trees with no adverse effects and expressed their opinions that Picl oram could only kill an oak tree if it were applied to th e tree ’ s stump after cutting . Th is o pin i on w as based o n the ir inte rpre tat io n of the product ’ s label , an interpretation that arguably is not supported by the label its elf and was contradicted by Walterscheidt and B egn aud.

Revie wing the evidence in the li ght most favorab le to the verdict , as we must in a le ga l suf fic ienc y review, and mindful of the trial court ’ s ro le as t he sole judge of the credibility of the witnesses, we con clude that the evidence was legally su fficient to support the trial court ’ s find i ngs challenged in sub

- issues B a n d C. W alte rs cheidt ’ s and Begnaud ’ s testim ony prov ides more th an a scintilla of evidence to support the findings , and a reasona ble fact finder could have disrega rded Willard ’ s and R uffin ’ s contrary evidence. See City of Ke ller , 168 S.W. 3d at 80 7; King Ran ch , 118 S.W. 3d at 751

. We o verrule K err and Cowpuncher ’ s sub

- issues B an d C.

In sub

- issue H , Ker r and Cowp uncher challenge the trial court ’s finding tha t their actions “ wer e the producing cause, proximate c ause and resulted in [the Lamberts ’ ] dama ges. ”
S pecifically , Kerr a n d Co w p uncher ass ert that there is a “ complete absen ce of evidence that the spraying was the proximate cause of the death of [the Lamberts ’ ] trees. ” The Lamberts asserted

a DTPA claim against Ker r and Cowpuncher , an d the tri al c ourt ’ s j udgment rec ites tha t Kerr and Cowpun cher ’ s mi s representations about the possib ili ty that Picloram could harm their oak14

trees was “ a produc ing c ause ” of the economic dam ages aw arded in the j udgment. For DTPA viola ti ons, only producing c ause must be sh own. See Tex. B us. & Co m . Code § 17.50(a ) ; Pr udential Ins. Co. v. Jeffer son Assocs., Ltd. , 896 S.W.2d 156 , 160

- 61 (Tex. 1995) ; Doe v. Boys Club of Greater Dallas, Inc. , 907 S.W. 2d 472, 481 (Tex. 1 995) ( for DTPA claims p laintiff s need

on ly show producin g cause and need no t establ is h tha t harm was foreseeable); cf. Brown v. Edwards T

ransfer Co. , 764 S.W.2d 220, 223 (Tex. 1988) (negligence requires pr o of of pr oxi mate cause which enc ompasses both cause in fact and foreseeabi lity )

.

While Kerr and Co wpunche r do not expressly challeng e the t rial court ’ s fin ding of producing cause, both proximate c ause an d producing c ause have the common element of cause in fact. Prudential Ins. Co. , 8 96 S.W.2d at 161. This requires proof tha t an act or omission was a substa ntial fa ctor in bri nging ab ou t an injury th a t would not otherwise have occurred. Id. Ker r and Cow puncher argue that there is a “ compl ete absence of evidence ” that spraying the tre es caus ed them to die. As set forth above , how ever, Walter sche idt, a ho rti culturis t and plant patholo gi st, o pined that Piclora m did in fact cause the trees on the Property to die. While Begnaud testified that there were a combination of factors contri but ing to the death o f the trees , he agreed t hat P ic loram could have con tribut ed in so me percenta ge. The re

was evidence t hat Kerr and Cowpuncher represented to Robert Lambe rt that Picloram w ould not harm his trees and that Robert Lambert only agreed to hire Kerr and Cow puncher because of th is
repres entation along with the ir fai l ure to disc lose that P icloram co uld i njur e oak trees. See Boys Club of Greater Dallas, Inc. , 907 S. W. 2d at 478 (DTPA action requires showing that false, misleading, or deceptive acts were producing cause of dam ages). The fin ding that the Picl oram harmed tre es on th e Property was supp or ted b y the test imony of both horticulturists , whi ch was

not m er e conjecture, guess , or speculation. The label for Picloram its elf cautions that Picl ora m15

can “ control ” trees, including oak tre es . Kerr and C owpuncher ’ s conduct in assur ing Robert Lambert th at Pi cloram was safe for his trees was not too atte nuated fr om the injury to the trees to be a substantial factor in bringing about the harm. See id. ( cause in fact is not established when defe ndant ’ s conduct does no more than furnis h condition that ma k es inju ries possi ble). Rather, Lambert testified that without those assurances he would not ha ve hired Kerr and Cowpuncher to spray Picl oram on the Pro pe rty. The e vidence presented at trial is l e gally sufficient to support the trial co ur t ’ s findi ng regar di ng pr oducing ca use. 3 We overrule Kerr an d Cowpuncher ’ s sub

issue H.
Legal Suf ficiency of Finding Related to Kerr ’ s Knowledge
In sub

- issue I, Kerr and Cowp uncher challenge the sufficiency of t he evidence supporting the trial cour t ’ s finding th at Kerr k n ew tha t Piclora m could harm live oak trees a nd that h e knew his representation to Robert Lambert that the herbicide would not ha rm his

trees was false. To be actionable under the DTPA, a failure to disclo se mate rial information require s that the defend an t knew the infor mation but did no t disclose it to the pla intiff

. See Te x. Bus. & Com . Code § 17.46 (b)(2 4 ) (statin g that it is unlawful to fail to “ di sclo se information

con cerning goods or service s which was kno wn at the time of the tran saction ” ). I t is a l so
act ionable u nder the DTPA to repr esent that go o ds or service ha ve characteris tics they do not have , i d

. § 17.46(b)(5) , but unlike a DTPA claim based o n a failure to disclose, a DTPA claim base d on an affirmative misrep resenta tion doe s not requ ire that t he def endant kn ew of the falsity

3 Because the tr ial cou rt awarded t he same compensatory damage s under the Lamberts ’ DTPA and negligence causes of action, we need not consider Kerr an d Co wpun cher ’ s proximate cause challenge to the Lamberts ’ negli g enc e cl aim. See MB R Asso cs., Inc. v. Lil e , No. 02

- 11

- 00431

- CV, 2012 WL 46616 65 , at *7 (Tex. App.

— Fort W orth Oct. 4, 2012 , pet. denied ) (mem. op.).16

of the misrepresentation to e stablish liability. See Henry S. Miller Co. v. Bynum , 797 S.W.2d 51,
55 (Tex. App.

— Ho uston [1st Dist.] 1990) aff ’ d 836 S.W.2d 1 60 (Tex. 1992). Thus, eviden ce
t hat Kerr knew his r epre sent ation to Rob ert Lambe rt that Picloram could not hurt his trees was false was not necessary to support the trial court ’ s conclusion that Kerr and Co wp uncher violated section 17.46(b)(5) of the DTPA. However , the tr ial court found that “ [w]hen Kerr repr esen ted

to [th e Lambert s] that the chemicals he was using wo uld not injure [their] trees, he knew that

state ment was false. ” In its c onclusion s of law , the tr ial court stated t hat Kerr “ knowingly and falsely ” represented that Picloram wou ld not harm the L amberts ’ t rees . Thus, we will review t he legal suffic iency of the evidence sup p orting the t rial court ’ s findin g that Kerr kn ew th at his

statem ent that Picloram could n ot harm the Lamberts ’ t rees was false.

K err and Cowpuncher argue that there was no evi dence at t rial t hat Kerr k new that Piclora m would or could kill oa k trees

. They also point to the testimony of Will ard , Kerr,

an d Ruffin that they had used Picloram ex tensively and had n ever know n the chemical to injure or kill a mature t ree. Kerr and Co wpuncher a lso re fer to Wi llard ’ s and Ruffin ’ s interpre tation of the Pi cloram label to indicate that the only way Picloram could kill an oak tree is by application to it s stump , an interpretation that a reasonab le factfinder could hav e foun d to be inconsist ent with t he i nf

ormation on the label itself. Kerr and Co wpuncher overl ook evidence at trial that Kerr was aware of the potential for Picloram to harm trees. Begnaud testified ab out his questioning of Kerr i n 2016 when he vi sited the Pr operty to investi gate what caus ed the tree s to die. Beg naud re co unted that:

I asked what chemical. I a s ked wa s it ground, was it aerial, how it was applied. It was told to me that it was groun d applied. I asked if he ( Kerr) knew th at this chemical was capable of causin g injuries to tr e es as the label says, and he said,

“ Sure. ”17

The label on All i gare Picl oram 22 K i dentifie s it as a “ Restricted Use Pestic ide ” and warns that it

“ [m ]ay in jure (p hytoto xic) susceptible, non

- target plants. ” T he label also stat es that Picloram

c ontrols oa k t re es, which Begnaud testifi ed means that the product can kill oak trees. Multiple witnesses, including Willard, Ruffin, and Begnaud testified that the pr oduct label is “ the law ” that applies to l icensed applicators like Kerr . The label requ i res that a ll pe rsons usin g the product be informed o f the precau tions included in the label and, as a licensed commercial applicator, Kerr was r equired to read and become familiar with the label a s well as have any people wor king under hi m and his licens e read the l abel and ve rify that they had done so by signing and dating the label or by filling out pre scribed verification forms. See 4 Te x. Ad min. Code § 7.31(e) (Tex. Dep ’ t of Agri c ulture, S upervision)

.

Kerr also testified that he had a policy of bein g careful n ot to spray und er the canopies of live oak trees, and the label he was required to be f amili ar with states :

Untre ated trees can occasionally be affected by root uptake of herbicide through movement into the topsoil or by excreti on o f the product from the r oots of nearby tre ated trees. Do not a pply Alligare Pic loram 22K wi thin th e r oot zone of desirable trees unless such injur y can be tole rated.

The testimony and exhibi ts presented at t rial provide more than a sc intilla of eviden ce t ha t Kerr knew that Piclo ram c ould injur e t rees . T estimony showed that Kerr told Begnaud that he kn ew Picl oram was capable of causing in jury to trees , that he had a policy to avoid spraying under the canopy of trees, and that he was legally requi red to have read the pro duct ’ s label

. This ev ide nce is legally sufficient to supp ort th e trial court ’ s findi ng that when Kerr told Robert Lambert that the chem ical he was going to spray o n the Property could not hu rt the trees he knew that representation was fa l se. We overr ule Kerr an d Cow puncher ’ s su b

- issue I.18

Legal Sufficiency of Evidence Supporting Addition al Dam ages Award

The trial court awarded the Lamberts $121,950 as compensatory damages to their trees and $30,000 in “ additional dam ages . ” Under th e DT PA, “ addition al d amages ” of u p to three t imes the amount of actual damages are allowed if the plaintiff shows that the defendant commit ted the violation of the DTPA “ knowingly

. ” See Tex. Bus. & Com. Code § 17.50(b)( 1)

. The trial court found that “ $30 ,000 is an approp riate amount to be awarded in Ad ditional Damages under the DTPA for the knowing violati ons . ” In sub

- issue J, Kerr and Co wpuncher assert that ther e is insufficient evi dence to support this finding because there was legally
i nsuf ficient evi dence that Kerr k n ow in gly mis repr esented th a t Picloram could not harm the
La mberts ’ trees. As discussed in addressing sub

- issue I, the trial court hea rd evidence o f Ker r ’ s knowledge that Pic loram could harm oak trees that was sufficient to support th e fin ding challenged i n sub

- issue J

. Sub

- issue J is overruled.

C hal lenge to Findings Regard ing Training an d Su

pervision of Employees Sub

- issues D, E, F, and G challenge the fo llowing fin dings ma de by the trial court:

Defendant Kerr failed to d irectly superv ise t he persons w orkin g un der him on [the Pr operty] as required by law. Defendant Kerr failed to ad equately train and instruct the persons working under him on [the Property] as r equired by law. Defendants employed several workers who spraye d the property while not in the prese n ce of Defe ndant Kerr, and those emp loyees were not p roperly tra ined, nor were they l icens ed handlers of pesticides and herbicides of the type used. Def endants ’ un supervi sed employees failed to use ordinary care in the application of the h erbicide the y use d, spra ying when the w ind velocity was too high, spraying ch emical high in the air in stead of directing the sp ray on the prickly pear, spraying over the ro ot system s of [the Lamberts ’ ] trees and using more of the herbicide per acre th an th ey should ha ve us ed.19

The se f inding s are not necessary to s upport the judgment rendered o n the Lamberts ’ DTPA cause of action. Rather, they are findings that would support alternative t heories of negligence and violations of licensing provisions that make a commercial appl icator resp onsible for the actions of people working under his license. W he n the jud gment rests on m ultiple theories of recovery, an appellate court need not address all causes of a ction if any one theory is va lid. See, e.g. , ACCI
F orwar ding , Inc. v . Gon zalez W areh ouse P ’ship , 341 S. W.3d 58, 68 (Tex . App.

— San Anton io 2011, no p et.). We need not address the sufficiency of the evidence to support alternative theor ies th at support the judgment unle ss the Lambe rts ’ DTPA claim f ails , whi ch we conclude it does not. Cons equently, w e do not address sub

- issues D, E, F , or G.

Issue Two

— Challenge s to Conclusions of Law

In their sec ond issue, Kerr and Cowpuncher challen ge several of the trial court ’ s conclusions of law. The c halleng es are p resen ted as sub

- i ssues A thro ugh E. We revi ew a trial

court ’ s conc lusions of law de novo. BMC Software , 83 S.W.3d at 7 9 4

. When performing a de novo review, we exercise our own judgment an d redetermine each legal iss ue. Tre lltex, In c. v. In tecx, L. L.C. , 494 S .W.3d 781, 790 ( Tex. Ap p.

— H o uston [14t h Dist.] 2016, no pet.). To make this determination, we consider whether the conclusions are correct based on the facts f rom which they are dr awn. Id.

Th e trial court c on clude d that Kerr and C owpuncher violated DTPA s ec tions
17.46 (b) (5), (7) , and (24 )

. In sub

- issue A, Kerr an d Co wpunc her challe nge the tria l court ’ s conclusion of law that they violated DTPA sections 17.46 (b) ( 5) and (7)

. They do not raise a chal lenge to th e tri al court ’ s c onclusion that they also v iolated DTPA sec t ion 17. 46 (b )(24).
Beca use one of the Lamberts ’ DTPA liabili ty theories is sufficient to sustain the judgment , and20

because liability under 17.46(b)(24) is unchall enged, we need not address the corr ectne ss of the

tr ial court ’ s conclusion s on the alternat ive DT PA li abi lity theorie s fo und in s ections 17.46(b)(5) or (7). See Checker Bag Co. v. Washingto n , 27 S.W.3d 625, 634 (Tex. App.

— Waco 2000, pet. denied). We overrule sub

- issue A.

In sub

- issue B, Kerr an d C ow punc her chall enge the trial court ’ s conclusi on of law tha t the Lamber ts relied on their misrepresentation tha t th e che mical they would use on the Property would not harm the ir trees and that such reliance wa s reasonable. Ker r and Cowpuncher assert tha t this conclusion of law is incorrect because it “ assumes fac ts that wer e not in evidence, i .e. , that [Kerr and Cowpuncher] made a misrep resentation that the chemical would not harm their oak trees. ” To the contrar y, Robe rt Lamber t testifie d une qui vocally that h e asked Kerr whether the ch emical he was go ing to use would possi bly hurt the trees a nd that Kerr told him it would not . This testimony was unco nt rover ted

. A mple evid ence at trial showed that , contrary to Kerr ’ s representation, Piclor am could harm oak trees

. W alterscheidt also testified that , in his opi nion, Piclo ram d id kill the trees on the Property. Sub

- issue B is overruled.

In sub

- issue s C and D, Ker r and Cowpuncher argue tha t the trial court erred when it conclu ded that Kerr wa s personally lia ble for misrep resentations made to Ro ber t Lamb ert and that Kerr a nd Cowpuncher are jointly and several ly liable for th e Lamberts ’ da mages. Kerr and Cowpuncher as sert that the evidence does not support “ piercing t he co rporate veil , ” disregard ing Cowpun cher ’ s corporate form, and imposing individual lia bili ty o n Ker r ra th er than only on Cowpuncher, a separat e corporate entity. Af ter the trial court originally rendered judgment against Cowpuncher alone, the Lamberts filed a motion to modify the jud gm ent and , relying on Miller v. Keyser , 90 S.W.3d 712 (T e x. 2 002) , argu ed th at Kerr, as Co wpuncher ’ s agent, was personally liable for any misrepresentation he made, even if he was act ing as agent for a21

corporation. A f

ter he aring argument, the trial court mo di fied its judgment to impose person al liabil ity on Kerr. In M iller , the Texas Supreme Court held that an agent for a corporation may be held personally liable for his own violation s of the DTPA

. Id. at 71 7

- 18 (age nts are personally liable for th eir own torts and agent may be held personally liable for his o wn v iola tions of
DT PA). Kerr and Cowpuncher do not cite Miller in their brief o r t ry to distinguish its holding. Rather, the ir argument s address pierc ing the c or porate veil and dis regarding t he corporate for m, theories of liability that are inapplicabl e t o th e j udgment rend ered by the trial court in this case.
W e overrule su b

- issue s C and D.

In sub

- issue E, Ker r and Cowpuncher assert , without any sup porting b riefing or argument, that the tr ial court erron eously concluded that the evidence at trial su ppor ted re cover y on the alternative theories of fraud, negli gence, n egligent misrepresentation , and breach of contract. The appellate rules require an ap pellant ’ s brief to contain a clear and co ncise argument for the contentions made. Tex. R. App. P. 38. 1(i) . A n issue not sup port ed by ei ther argument or authorities is waived. Huey v. Huey , 200 S.W.3d 851, 854 (Tex. App.

— Dallas 2006, no pet .).
Because K err and C owpuncher have provided no argu m ent at all, we find th e issue inadequately briefed and declin e to addr e ss it other th an to note that because the judgment can be upheld on the Lamberts ’ DTPA theory, we would not in any ev ent address challe ng es to a lter nativ e le gal

t heories supporting the judgment. See Tex. R. App. P. 47.1 (court of ap peals must ha nd do wn

o p inion that add resses is sues raised and necessary to final disposition of appeal); City of San
Antonio v. Rodriguez , 856 S. W .2d 552, 555 ( Tex. Ap p.

— San An tonio 1993, writ denied).22

Issu e Three

— R equest for Remittitur

In their thi rd issu e, Kerr a nd Co w punc her argue t hat th e trial court ’ s damages award represen ts a double recovery for both tempor ary an d permanent damages and request a remit titur

. The trial court awarded the Lamberts $112 ,500 for dimi nution in the market value of the Property cause d by t he d amage to th e trees an d $9,450 for the cost of r e moving th e dead

tre es. Kerr an d Co wpuncher maint ain that the $9,450 damage award is for “ tempor ary da mag e s ” resulting in a double recove ry . In their moti on for new trial , Kerr an d Cowpuncher asser te d th at
t he trial co urt “ did not use the proper measure of calculating damages ” and th erefore “ the Judgment does [not] correctly calculati ng [sic] damage s, if any

. ”

In general, the measure of damages for injury to real property depen ds on whether the inj u ry i s fo und to be t empo rary or permanent, which is a question of law

. See Gilbe r t Whe el er, Inc. v. En bridge Pipelines (E

. Tex

. ), L.P. , 449 S. W .3d 474 , 480 (T ex. 2014) . If damage is found

t o b e permanent, the proper measure o f damages is the d i f ferenc e be twee n the value of the land immediately before the injur y a nd its value immediately after. Id. at 478

- 79. If the injury to the land is found to be t emporary , the owner is entitled to re cov er the amount necessary t o repair the injury and put the land in t he c o ndition it was i n at the time immediately prec eding the i nj ury. I d. Here, the trial court a warded damages of $112,500, the amount it found to be t he di minution in the fair market valu e of the land caused by the loss of the trees. Th us, it is appar en t th at the trial cour t found that the injury to the Property w as permanent and used a proper measure of damages

. See id. T he trial court also awarded the L amberts an additional $9,450 as com pensatory damages for the cost of removing the dead tr ee s from t he P roperty. Ke rr and Cowpunch er argue th at this additional award of $9,450 repr esents a “ dou ble recover y ” caused by the court awardin g damages for both a t emporary and a perma nen t injury to the Pro perty. We disagree. The trial23

court expressly found tha t th e $9,450 was to compensate the La mberts for having to remove the dead trees from the land . Th e trial court did not find that $9,450 wa s the amount neces sary to put the la nd in the cond ition it was in at the time pre c eding the injury . The trial court used a
prop er me asu re of damages to compensate the Lamberts for a perm ane nt injury to the Property and, in addition, awar ded damages to compensate the La mber ts for the cost o f removing dead trees from the Property not because such removal would return the Pro p e rty to its previo us condition but because the cost of remov al was an out of p ocket expense incurred by the Lamberts because of Kerr and Cowpunch er ’ s DTPA violatio ns. See Tex. Bus. & C om. Code § 17.50(b)(1) ( “ In a suit filed under this section, each c onsu mer who prev ail s may obtain . . . the amount of

econ omic dama ges found by the trier of fact. ” ). We overru le issue three.

CONCLUSION
For the r e asons stated in t his opi nion , we affirm the judgem ent of the trial court.

_______________________________ ___________ Thomas J. Baker , Jus tice Before Chief Justice Rose, Jus tices Baker and Kelly Affirmed Filed: October 2 3 , 2020