REVISED August 25, 2014

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-40854

DORIS FORTE, O.D., on behalf of herself and all other similarly situated 

persons; BRIDGET LEESANG, O.D.; DAVID WIGGINS, O.D.; JOHN 

BOLDAN, O.D.,

Plaintiffs - Appellees

v.

WAL-MART STORES, INCORPORATED,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

Before STEWART, Chief Judge, and JOLLY, and SMITH, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This case of first impression calls upon us to interpret and apply the 

Texas Optometry Act. Wal-Mart rented space to optometrists using a standard 

lease agreement requiring optometrists to make representations in their leases 

of the projected number of hours their offices would remain open. A jury found 

Wal-Mart liable for “setting or attempting to influence . . . office hours of an 

optometrist” in violation of the Act. The jury returned a civil penalty award, 

which the district judge called “stunning” and “the highest verdict that’s been 

reached in this court . . . in a case that is not worthy of the highest verdict.” 

United States Court of Appeals

Fifth Circuit

FILED

August 14, 2014

Lyle W. Cayce

Clerk

 Case: 12-40854 Document: 00512744187 Page: 1 Date Filed: 08/25/2014
No. 12-40854

Accordingly, the district judge remitted the award, and the plaintiffs accepted 

the remittitur. On Wal-Mart’s appeal, we AFFIRM the judgment of liability. 

In doing so, we decline to adopt Wal-Mart’s construction of the Texas 

Optometry Act, which runs counter to its plain words giving it its plain 

meaning. We further hold, however, that Texas’s rule on exemplary damages 

requires us to REVERSE and VACATE the civil penalty awards inasmuch as 

the plaintiffs neither suffered nor were awarded any underlying damages. We 

REMAND the case to the district court for entry of judgment consistent with 

this opinion.

I.

A.

Since 1992, Wal-Mart Stores, Inc. (“Wal-Mart”) has leased space in its 

Texas stores to optometrists, typically receiving as rent ten percent of the 

optometrists’ gross income. Through 1995, the standard lease Wal-Mart used 

in Texas required optometrists to remain open for at least forty-five hours a 

week. Failure to abide by the terms of the lease put the optometrist in default, 

which, at Wal-Mart’s discretion, could trigger a liquidated damages provision 

of $200 per day of violation. Although none of the four plaintiffs here leased 

space at Wal-Mart when the forty-five hour requirement was in effect, that 

requirement set the stage for the events that followed.

In 1995, the Texas Optometry Board (“the Board”), a state agency 

regulating optometry, notified Wal-Mart that setting required hours violated 

the Texas Optometry Act (“TOA”), which prohibits “control[ling] . . . the 

practice of an optometrist” by “attempting to influence the . . . office hours of 

an optometrist.” TEX. OCC. CODE § 351.408(b), (c). Wal-Mart then 

eliminated the forty-five hour requirement and revised its lease to read “[t]he 

following is the LICENSEE’S representation of the weekly hours of coverage 

to the patients,” which was followed by a table in which the optometrists could 

2

 Case: 12-40854 Document: 00512744187 Page: 2 Date Filed: 08/25/2014
No. 12-40854

handwrite their hours. The lease further provided that Wal-Mart “shall retain 

no control whatsoever over the manner and means by which the LICENSEE 

performs his/her work.” 

In 1998, after Wal-Mart revised its lease, the Board stated in a

newsletter addressed to the public at large that leases that even referenced

hours violated the TOA. In 2003, the Board wrote Wal-Mart that it had 

learned that Wal-Mart had told an optometrist that customers were requesting 

longer hours. The Board warned that, although it was aware that Wal-Mart 

had also stated “the ultimate decision regarding the hours and fees for eye 

examinations are made by the doctors,” even informing optometrists of 

customer requests for longer hours violated the TOA. Nonetheless, Wal-Mart 

continued requiring that optometrists provide the hours representations in its 

leases.

B.

In 2007, the dispute culminated in this suit when Doris Forte sued WalMart in the United States District Court for the Southern District of Texas for 

alleged violations of the TOA. Eleven plaintiffs moved to certify a class action 

of four hundred optometrists. The district court, however, denied the 

certification and instead designated four plaintiffs that would go to trial. 

These plaintiffs were Drs. Doris Forte, John Boldan, David Wiggins, and 

Bridget LeeSang.

In 2009, while the suit was pending, Wal-Mart deleted the hours 

representation provision from its leases and sent a letter to Texas lessees 

stating that it would not enforce this provision. 

The four plaintiffs’ claims were tried to a jury in August 2010. The judge 

instructed the jury that the plaintiffs “do not claim they have suffered any 

physical or economic damages [and] only seek to recover civil penalties.” WalMart’s primary argument in the district court was that the hours 

3

 Case: 12-40854 Document: 00512744187 Page: 3 Date Filed: 08/25/2014
No. 12-40854

representation provision was not enforced, and that optometrists could change 

their hours if they desired. Wal-Mart also argued that the provision was not a 

condition of the lease because it was unenforceable.

The four plaintiff optometrists testified that they believed that the hours 

representation provision was binding and enforceable. All four plaintiffs 

conceded, however, that the hours were set at an acceptable level. Three of the 

plaintiffs renewed their leases, some multiple times, but when renewing all 

felt pressured to increase office and work hours.

The jury sided with the plaintiffs, awarding them $3,953,000 in civil 

penalties. This award was the maximum possible under the TOA—$1,000 per 

day that each plaintiff operated under his or her lease. The plaintiffs were also 

awarded $763,854 in attorneys’ fees. As a point of reference, the evidence 

showed that the gross annual income of the optometrists was in the 

neighborhood of $200,000.

Post-verdict, Wal-Mart renewed its motion for a judgment as a matter of 

law (JMOL). The district court denied the motion with respect to liability but 

entered a remittitur reducing the civil penalty to $400 a day. Forte v. WalMart Stores, Inc., No. CC-07-155, 2011 WL 1740182, *17 (S.D. Tex. May 4, 

2011). The reduced award totaled $1,396,400, to which the plaintiffs 

consented.

Wal-Mart now appeals the denial of its JMOL motion, asserting that the 

judgment should be reversed or vacated. Alternatively, Wal-Mart seeks 

further remittitur, and also urges that the civil penalty award as remitted by 

the district court violates both Texas’s cap on exemplary damages and Due 

Process.

4

 Case: 12-40854 Document: 00512744187 Page: 4 Date Filed: 08/25/2014
No. 12-40854

II.

We begin by addressing whether the district court erred in denying WalMart’s renewed JMOL motion, which we review de novo. Vanderbilt Mortg. & 

Fin., Inc. v. Flores, 692 F.3d 358, 364 (5th Cir. 2012). “When reviewing jury 

verdicts, the court views all the evidence and draws all reasonable inferences 

in the light most favorable to the verdict.” Black v. Pan Am. Labs., L.L.C., 646 

F.3d 254, 258 (5th Cir. 2011). A JMOL motion will be granted “[i]f the facts 

and inferences point so strongly in favor of [Wal-Mart] that a rational jury 

could not arrive at a contrary verdict.” Id. (internal quotation marks omitted).

A.

As a threshold matter, we reject the plaintiffs’ argument that Wal-Mart’s 

new argument raised on appeal concerning the proper construction of the TOA 

was waived by failing to present it to the district court. In the district court, 

Wal-Mart contended that because it did not attempt to influence the plaintiffs’ 

hours, it was not liable under the TOA. On appeal, Wal-Mart argues that 

although the TOA prohibits influencing office hours, it does so only when

attempting to control an optometrist’s professional judgment, and that the 

plaintiffs’ claims are not covered under the TOA so interpreted.

It is certainly true that we do not generally consider matters on appeal 

that were not presented in the lower court. New Orleans Depot Servs., Inc. v. 

Dir., Office of Worker’s Comp. Programs, 718 F.3d 384, 387 (5th Cir. 2013) (en 

banc). The purpose of this rule is to ensure the appellate court benefits from a 

full record on the issue and a lower court determination. Id. at 388. 

Consequently, “a well-settled discretionary exception to the waiver rule exists 

where a disputed issue concerns a pure question of law.” Id. (internal 

quotation marks omitted). Because Wal-Mart’s argument on appeal concerns 

a pure question of law, and all parties have had an opportunity to fully brief 

5

 Case: 12-40854 Document: 00512744187 Page: 5 Date Filed: 08/25/2014
No. 12-40854

the question, the waiver rule does not bar our consideration of Wal-Mart’s 

statutory argument as now presented to us.

B.

The TOA provision at issue, TEX. OCC. CODE § 351.408(c), states that

A . . . retailer of ophthalmic goods may not directly or indirectly:

(1) control or attempt to control the professional judgment, 

manner of practice, or practice of an optometrist or therapeutic 

optometrist[.]

In turn, TEX. OCC. CODE § 351.408(b) states that

“[C]ontrol or attempt to control the professional judgment, manner 

of practice, or practice of an optometrist or therapeutic 

optometrist” includes: 

(1) setting or attempting to influence the . . . office hours of an 

optometrist or therapeutic optometrist[.]

Any person injured by a violation of § 351.408 may sue and recover an 

appropriate civil penalty. Id. at §§ 351.603(b), 351.605.

Wal-Mart invokes the absurdity canon to argue that we must deviate 

from the plain language of the TOA. To Wal-Mart, the TOA’s prohibition 

against “control[ing] or attempt[ing] to control the professional judgment, 

manner of practice, or practice of an optometrist” would produce absurd results 

unless we erect some limiting principle. Cf. Combs v. Health Care Servs., 

Corp., 401 S.W.3d 623, 630 (Tex. 2013) (departing from plain language 

warranted when plain language produces absurd results).

An example Wal-Mart proffered at oral argument is a retailer ordering 

an optometrist to keep his store clean. It would be absurd for the TOA to 

outlaw such an order, which could possibly be construed as an “attempt to 

control” an optometrist. Wal-Mart argues that an “attempt to control” must be 

linked to an attempt to control the optometrist’s professional (i.e., medical) 

judgment. Wal-Mart argues that if the language of the TOA is applied literally, 

the TOA would prevent its ordering an optometrist to keep his store clean, but

6

 Case: 12-40854 Document: 00512744187 Page: 6 Date Filed: 08/25/2014
No. 12-40854

because the cleanliness of the store is unrelated to the optometrist’s 

professional judgment, the TOA avoids such absurdities.

By contrast, the plaintiffs argue that there is no getting away from the 

TOA’s statement that, “control or attempt to control” includes “setting or 

attempting to influence . . . . office hours.” TEX. OCC. CODE at § 351.408(b). 

Moreover, the plaintiffs also argue that the TOA expressly prohibits 

attempting to control “the professional judgment, manner of practice, or 

practice of an optometrist.” Id. at § 351.408(c) (emphasis added). Tying 

attempts to control only to professional judgment would read two of the three 

parts out of this provision. Moreover, the plaintiffs note that the TOA requires

that § 351.408 be “liberally construed” to prevent retailers from imposing on 

optometrists’ independence. See id. at § 351.408(a).

C.

After considering the respective arguments of the parties, we adopt the 

plaintiffs’ plain meaning interpretation for three reasons. First, Texas courts 

highlight the primacy of a statute’s plain meaning. “When we interpret a 

Texas statute, we follow the same rules of construction that a Texas court 

would apply—and under Texas law the starting point of our analysis is the 

plain language of the statute.” Wright v. Ford Motor Co., 508 F.3d 263, 269 

(5th Cir. 2007). The Texas Supreme Court has stressed that “stray[ing] from 

the plain language of a statute . . . risk[s] encroaching on the Legislature’s 

function to decide what the law should be.” Fitzgerald v. Advanced Spine 

Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. 1999).

Second, there is no absurd result in finding Wal-Mart liable here. The 

“bar for reworking the words our Legislature passed into law is high.” Combs, 

401 S.W.3d at 630. Consequently, the Texas Supreme Court views the 

absurdity canon as a “safety valve” that is “reserved for truly exceptional 

cases.” Id. Here, when Wal-Mart began leasing space to optometrists, it was 

7

 Case: 12-40854 Document: 00512744187 Page: 7 Date Filed: 08/25/2014
No. 12-40854

on notice that the TOA affected the balance of power between retailers and 

optometrists. More to the point, Wal-Mart was on notice that the TOA 

prohibited setting or attempting to influence office hours. But Wal-Mart, a 

sophisticated party, contracted with optometrists nonetheless. Given that it 

was on notice of the TOA when it began contracting with optometrists, WalMart’s liability was not “patently nonsensical.” Id.

Wal-Mart’s question about whether, consistent with the absurdity 

canon, a retailer can order an optometrist to keep his store clean is outside the 

bounds of what we need to decide to resolve this case. There is already a clear 

line between influencing office hours and influencing office cleanliness. Only 

influencing office hours is explicitly listed in the TOA as a method of attempting 

to control an optometrist, and so is expressly prohibited. Coming up with an 

overarching interpretation of what an “attempt to control” encompasses is not 

necessary.

Third, when a court invokes the absurdity canon, it is attempting to 

divine a legislative intent that the plain meaning of the statute does not reflect. 

When a legislature uses an “amorphous term” we may sometimes have “no 

choice but to speculate about [legislative] intent.” BedRoc Ltd., LLC v. United 

States, 541 U.S. 176, 183 (2004). But such speculation is less necessary when 

the legislature “has textually narrowed the scope of [a] term.” Id. The Texas 

Legislature has narrowed “control or attempt to control” to specifically include 

“setting or attempting to influence . . . office hours.” “Control or attempt to 

control” is thus a narrowly defined rather than amorphous term. 

Consequently, we decline to speculate about legislative intent by invoking the 

absurdity canon.

Wal-Mart is asking us to winnow from a state statute its plain meaning. 

Because of federalism concerns, invoking the absurdity canon here is especially 

dangerous because it would involve a federal court’s “encroaching on the

8

 Case: 12-40854 Document: 00512744187 Page: 8 Date Filed: 08/25/2014
No. 12-40854

[Texas] Legislature’s function to decide what the law should be.” Fitzgerald, 

996 S.W.2d at 866.

D.

With that said, we turn to the plain meaning of the TOA. The TOA 

expressly prohibits a retailer’s “attempt to control the . . . manner of practice” 

of an optometrist. TEX. OCC. CODE § 351.408(c). “Control or attempt to control” 

is minutely defined in Section 351.408, and includes “setting or attempting to 

influence the . . . office hours of an optometrist.” Id. at § 351.408(b).

Under the plain language of the TOA, a rational jury could have found 

that Wal-Mart’s leases and conduct constituted “an attempt to control the . . . 

manner of practice” of an optometrist by coercing him into working certain

hours. Id. at § 351.408(c). The jury’s verdict was supported by the 

optometrists’ testimony that they understood themselves to be obligated to 

work the hours in the lease and that Wal-Mart pressured three plaintiffs to 

increase their hours when they renewed their leases.

III.

We now move on to the district court’s ruling that Chapter 41 of the 

Texas Civil Practices and Remedies Code (“TCPR”) did not apply to reduce any 

of the plaintiffs’ civil penalty awards. We review the district court’s ruling de 

novo, as it is a question of law. Williams v. Liberty Mut. Ins. Co., 741 F.3d 617, 

620 (5th Cir. 2014). We hold that Chapter 41 eliminates the civil penalties in 

this case.

Under Chapter 41, “exemplary damages may be awarded only if

damages other than nominal damages are awarded.” TEX. CIV. PRAC. & REM.

CODE § 41.004(a) (emphasis added). “Exemplary damages” are defined as “any 

damages awarded as a penalty or by way of punishment but not for 

9

 Case: 12-40854 Document: 00512744187 Page: 9 Date Filed: 08/25/2014
No. 12-40854

compensatory purposes.” Id. at § 41.001(5) (emphasis added).1 The TOA’s civil 

penalties fall within Chapter 41’s definition of “exemplary damages.” First, 

the TOA expressly labels civil penalties as a type of penalty. TEX. OCC. CODE

§ 351.603(b). Second, the TOA’s civil penalties as awarded here are not 

compensatory in nature. For example, the plaintiffs expressly disclaimed that 

they had suffered any actual damages.

The plaintiffs argue that Vanderbilt Mortg. & Fin., Inc. v. Flores, 692 

F.3d 358 (5th Cir. 2012), shows that Chapter 41’s “exemplary damages” does 

not extend to the TOA’s civil penalties. Vanderbilt held that “statutory 

damages” under TCPR Chapter 12, which prevents filing false liens, were not

“exemplary damages” under Chapter 41 of the TCPR. 692 F.3d at 372. This 

was so despite statutory damages’ not being designed to compensate for “any 

particular, actual harm.” Id. The TOA’s civil penalties, the plaintiffs argue, is

similar to Vanderbilt’s “statutory damages” in that neither are intended to 

compensate for “actual harm.” Id.

But Vanderbilt is distinguishable here for two reasons. First, in TCPR 

Chapter 12, “statutory damages” were listed separately from “exemplary 

damages.” Vanderbilt stated that this indicated a legislative intent to treat 

statutory damages and exemplary damages as mutually exclusive. Id. As 

statutory damages were not exemplary damages under TCPR Chapter 12, 

neither were statutory damages exemplary damages under TCPR Chapter 41. 

1 Penalties and damages are not mutually exclusive under Chapter 41. “Exemplary 

damages” by definition includes “any damages awarded as a penalty.” TEX. CIV. PRAC. &

REM. CODE § 41.001(5) (emphasis added).

“Exemplary damages” are further defined to include punitive damages. Id. 

“Exemplary damages” are not, however, intended to compensate for: actual economic or 

pecuniary loss, physical pain and suffering, mental or emotional pain or anguish, loss of 

consortium, disfigurement, physical impairment, loss of companionship and society, 

inconvenience, loss of enjoyment of life or injury to reputation. Id. at § 41.001(4), (5), (12).

10

 

 Case: 12-40854 Document: 00512744187 Page: 10 Date Filed: 08/25/2014
No. 12-40854

But unlike TCPR Chapter 12, the TOA contains no indication that civil 

penalties and exemplary damages are mutually exclusive.

Second, the statutory damages in Vanderbilt were not characterized by 

the statute at issue as a “penalty,” which constitutes a central element of the 

definition for exemplary damages under Chapter 41. TEX. CIV. PRAC. & REM.

CODE § 41.001(5). By contrast, the TOA characterizes the award the plaintiffs 

seek here as a “civil penalty.” TEX. OCC. CODE § 351.603(b). The argument

that the TOA’s civil penalties are “exemplary damages” is therefore

significantly more compelling than the statutory damages that Vanderbilt

considered.

We now circle back to Chapter 41’s command that “exemplary damages 

may be awarded only if damages other than nominal damages are awarded.” 

TEX. CIV. PRAC. & REM. CODE at § 41.004(a). Because civil penalties under the 

TOA constitute “exemplary damages” under Chapter 41, and because the 

plaintiffs have acknowledged that non-nominal damages were not awarded, 

Chapter 41 eliminates the award of civil penalties unless some exception to 

Chapter 41 applies.

The district court held that Chapter 41’s lower damage cap exception 

applied. Forte, 2010 WL 519042 at *2. This exception renders Chapter 41 

inapplicable “to the extent another law establishes a lower maximum amount 

of damages for a particular claim.” TEX. CIV.PRAC. & REM. CODE at § 41.002(b). 

Restated, Chapter 41 “applies to any action involving exemplary or punitive 

damages unless another law establishes a lower cap.” Arismendez v. 

Nightingale Home Health Care, Inc., 493 F.3d 602, 611 (5th Cir. 2007). The 

“maximum exemplary award cannot be determined until the jury has awarded 

11

 Case: 12-40854 Document: 00512744187 Page: 11 Date Filed: 08/25/2014
No. 12-40854

economic damages.” Id. at 612.2 “Once the statutory cap of Chapter 41 has 

been determined, a district court can then determine if another . . . statutory 

cap is lower and therefore controlling.” Id. (emphasis added).

We hold that the district court erred in applying Chapter 41’s lower 

damage cap exception. Chapter 41’s section 41.004 caps damages for each 

plaintiff’s claim at zero, because no plaintiff received non-nominal damages

that would have in turn permitted any award of exemplary damages. TEX. CIV.

PRAC. & REM. CODE § 41.004(a). By contrast, the TOA caps civil penalties at

“$1,000 for each day of a violation.” TEX. OCC. CODE § 351.603(b). Because the 

TOA does not establish a lower damage cap than Chapter 41, Chapter 41’s 

lower damage cap exception does not apply.

The district court mistakenly determined that § 41.008(b) established 

the maximum amount of damages under Chapter 41. Forte, 2010 WL 

519042 at *2. Section 41.008(b) caps exemplary damages at the greater of 

(a) “two times the amount of economic damages [plus] noneconomic 

damages . . . not to exceed $750,000” or (b) $200,000. TEX. CIV. PRAC. & REM.

CODE at § 41.008(b). Since the plaintiffs asserted no economic or 

noneconomic damages within the meaning of Chapter 41, § 41.008(b) would 

cap the exemplary damages each plaintiff could have received at $200,000. 

But here, § 41.004(a) establishes the maximum amount of damages under 

Chapter 41 because it establishes a cap lower than § 41.008(b). Because the 

plaintiffs had no non-nominal damages, the maximum amount of exemplary 

damages under Chapter 41 for each plaintiff’s particular claim was not 

$200,000 under § 41.008(b), but $0 under § 41.002(b).3

2 Chapter 41 defines economic damages as “compensatory damages intended to 

compensate a claimant for actual economic or pecuniary loss.” Id. at § 41.001(4).

3 The district court also held that Chapter 41 did not apply because, in its reading of 

the TOA, the TOA does not require compensatory damages to be a prerequisite to civil 

12

 

 Case: 12-40854 Document: 00512744187 Page: 12 Date Filed: 08/25/2014
No. 12-40854

Because Chapter 41 eliminates the plaintiffs’ civil penalty awards, we do 

not consider Wal-Mart’s remittitur and Due Process arguments.

IV.

For the reasons above, we AFFIRM the district court’s judgment 

regarding Wal-Mart’s liability and REVERSE and VACATE the district court’s

judgment regarding damages. The case is REMANDED to the district court 

for entry of judgment consistent with this opinion.4

penalties. Forte v. Wal-Mart Stores, Inc., No. CC-07-155, 2010 WL 519042, *2 (S.D. Tex., 

Feb. 2, 2010). The district court held that the TOA prevailed over Chapter 41 because the 

TOA was the more specific statute. Id. The district court erred, however, and the plaintiffs 

do not even cite this holding of the district court’s in their brief, much less make such an 

argument.

Chapter 41 prevails over the TOA because Chapter 41 expressly states that it 

“prevail[s] over all other laws to the extent of any conflict.” TEX. CIV. PRAC. & REM. CODE

§ 41.002(c). Moreover, the TOA is silent on what damage cap to apply when there are no 

compensatory damages. Consequently, on this specific issue there is no conflict between the 

TOA and Chapter 41. Invoking the specific versus the general canon is therefore not 

appropriate here. 4 We do not address attorneys’ fees in this opinion. We remand to the district court to 

consider attorneys’ fees in the light of this opinion.

13

 

 Case: 12-40854 Document: 00512744187 Page: 13 Date Filed: 08/25/2014