IN THE

TENTH COURT OF APPEALS

No. 10-10-00062-CV

TORNADO TRUCKING, INC.,

Appellant

v.

RICHARD A. DODD, INDIVIDUALLY

AND AS PERSONAL REPRESENTATIVE

OF THE HEIRS AND ESTATE OF 

GEORGE A. DODD, DECEASED; 

LEOLA DODD, DORIS ANNETTE DODD,

GLENN WAYNE DODD. LON MARCUS DODD

AND KAREN DODD PAIR,

Appellees

From the 82nd District Court

Falls County, Texas

Trial Court No. 36,383

M E M O R A N D U M O P I N I O N

This appeal involves wrongful death, survival, and loss of consortium claims 

brought by appellees, Richard A. Dodd, individually and as personal representative of 

the heirs and estate of George A. Dodd, deceased; Leola Dodd; Doris Annette Dodd; 

Glenn Wayne Dodd; Lon Marcus Dodd; and Karen Dodd Pair (collectively “the 
Tornado Trucking, Inc. v. Dodd Page 2

Dodds”), against appellant, Tornado Trucking, Inc. (“Tornado”), regarding a collision 

between George’s vehicle and an eighteen-wheel truck operated by a Tornado 

employee. A jury determined that Tornado was liable and awarded the Dodds $380,000 

in personal-injury damages and $75,000 to Leola for loss of consortium with George, her 

husband. By five issues, Tornado argues that: (1) the trial court erred in admitting 

evidence of two positive drug tests of the driver of the eighteen-wheel truck; (2) the 

evidence supporting the award of mental anguish damages is insufficient, or in the 

alternative, excessive and manifestly unjust; (3) the evidence supporting the loss of 

consortium damages awarded to Leola is insufficient, or in the alternative, excessive 

and manifestly unjust; (4) the damage award pertaining to physical pain is excessive 

and manifestly unjust and should be remitted; and (5) damages awarded for physical 

impairment are excessive and manifestly unjust and should be remitted. We reverse 

and remand.

I. BACKGROUND

At approximately 3:00 p.m. on January 4, 2007, an eighteen-wheel truck driven 

by Juan Leal Jr., an employee of Tornado, collided with a vehicle driven by George, an 

eighty-six-year-old rancher, on State Highway 77, near Rosebud, Texas.1 As a result of 

the collision, George’s vehicle sustained severe damage to the rear, and both vehicles 

left significant skid marks on the road. Jim Mallory, an expert in accident 

 

1 Witnesses, including Texas Department of Public Safety Trooper Josh Cashion, testified that 

drugs and alcohol were not involved in this accident. In fact, on the same day of the accident, Tornado 

tested Leal for drugs and alcohol. The test came back negative. Nevertheless, the results of Leal’s prior 

and subsequent drug tests were admitted into evidence—two tests which yielded positive results.
Tornado Trucking, Inc. v. Dodd Page 3

reconstruction, noted that George’s vehicle left a skid mark measuring 391.5 feet and 

that the eighteen-wheel truck driven by Leal left a 103-foot skid mark. Based on these 

measurements, Mallory estimated that George was driving fifty-five miles per hour and 

that Leal was likely driving between eighty-three and ninety miles per hour.

Leal testified that he first saw George’s vehicle when the vehicles were 

approximately 300 feet apart. It was not until Leal was about 150 feet away from 

George’s vehicle did he realize how slow George was driving. At that point, Leal 

slammed on his brakes. However, the eighteen-wheel truck collided with George’s 

vehicle, resulting in George’s vehicle being pushed into an adjacent ditch.

Rene Richter, a registered nurse at the Scott & White Memorial Hospital (“Scott 

& White”) in Temple, Texas, recalled arriving at the scene of the accident and speaking 

with George and state troopers investigating the incident. When he first arrived, 

Richter remembered seeing a Texas Department of Transportation construction vehicle 

with orange lights on the side of the road near where the accident transpired. George 

told Richter that when he saw the construction vehicle on the side of the highway, he 

slammed on his brakes and “decided to come to a stop in the middle of the highway.” 

Richter saw George “unbuckled and he was actually sitting with his feet out of the 

car . . . .” George was alert and oriented and did not complain of any pain, cuts, or 

bruising. Richter also noted that George “had no loss of consciousness and is pain 

free.”

Josh Cashion, a trooper with the Texas Department of Public Safety, testified that 

when he arrived at the scene shortly after the accident had occurred, he heard George 
Tornado Trucking, Inc. v. Dodd Page 4

playing the harmonica. Trooper Cashion saw a minor cut on George’s right hand, but 

he described George as not “too shaken” and “a tough old guy.” In fact, George 

refused medical treatment after the accident; instead, George left the scene of the 

accident with his son, Lonnie. Trooper Cashion issued Leal a citation for failing to 

control speed and concluded that George’s actions were not the cause of the accident.

2 

Trooper Cashion allowed Leal to drive the eighteen-wheel truck from the scene of the 

accident to Tornado’s offices in Victoria, Texas.

The day after the accident, Robert McBee, a longtime family friend, noticed that 

George’s eyes were dilated and recommended that George visit the Dodd family 

physician, Mike Locklear, M.D.3 Dr. Locklear diagnosed George with a cervical sprain 

and a “left hand/wrist injury” and prescribed Tylenol and Ibuprofen for treatment of 

pain and inflammation. George returned to Dr. Locklear’s office for a follow-up visit 

several days later. George, a man who was repeatedly described as stoic and reluctant 

to complain about pain, told Dr. Locklear that he was feeling “woozy.” However, Dr. 

Locklear’s diagnosis remained the same, and he specifically ruled out a concussion. At 

this time, Dr. Locklear recommended that George participate in physical therapy.

George’s physical therapy began on January 26, 2007, and continued through the 

first half of February 2007. Beverly Luedke, a licensed physical therapist, treated 

 

2 Stephen Sanders, a safety director for Tornado, admitted at trial that Tornado was responsible 

for the accident; however, the extent of the company’s liability was hotly contested.

3 George’s children noticed that George’s energy level decreased after the accident and that 

George became depressed. Apparently after the accident, George stopped: (1) visiting his wife, Leola, 

whom he previously visited at a local nursing home five times a week; and (2) playing the harmonica. 

George’s children also testified that George’s mobility significantly decreased after the accident. 

However, Leola did not testify as to how the accident affected her relationship with George.
Tornado Trucking, Inc. v. Dodd Page 5

George. When he first presented himself, George informed Luedke that he had some 

neck pain, rib pain, and pain in his right shoulder. Luedke asked George to assign a 

value corresponding to his pain based on a scale of zero to ten, with zero representing 

no pain and ten “being so bad to be in the hospital.” George assigned a three to his 

neck pain, a six to his rib pain, and “only complained of soreness in his right shoulder.” 

When he was discharged from physical therapy on February 15, 2007, George stated 

that his shoulder felt much better but that he still had pain in his ribs. 

George saw Dr. Locklear again about six weeks after his previous visit. At this 

visit, George had swelling in his face and ankles; he was short of breath; he had gained 

ten pounds; and he had a heart murmur resulting from aortic stenosis.4 Dr. Locklear 

diagnosed George with congestive heart failure. Two days later, George was admitted 

to Scott & White with kidney failure, heart failure, and edema. Ultimately, George died 

on March 6, 2007. George’s death certificate indicates that “heart failure” and “vascular 

heart disease” were the causes of death with “urinary infection,” “renal failure,” and 

“suspected prostate cancer” as contributing causes. Lige Buroughs Rushing Jr., M.D., a 

licensed physician, testified that George contracted pneumonia while hospitalized at 

Scott & White and that the pneumonia was also likely to be a contributing cause of 

George’s death. Dr. Rushing stated that there was no relationship between the accident 

 

4

It is important to note that the jury heard evidence that George had, for years prior to the 

accident, suffered from serious health problems, including long-term degenerative joint disease, hip 

replacement in 2004, long-term urinary and prostate problems dating back to at least 1994, a diagnosis of 

prostate cancer in 2004, a history of chronic low oxygen levels requiring “home oxygen” since July 2006, 

and chronic pedal edema. In addition to his problems, several witnesses noted that George typically 

refused to take prescribed medications, which Dr. Locklear acknowledged may have exacerbated his 

health issues.
Tornado Trucking, Inc. v. Dodd Page 6

and George’s eventual death on March 6, 2007. Plaintiff’s expert, David Wayne 

Simonak, D.O., disagreed with Dr. Rushing’s findings and noted that George died as a 

result of “respiratory failure secondary to an overwhelming pulmonary bacterial 

infection that led to multisystem organ failure and their [the Dodds’] decision to 

basically pull the—pull the pulmonary life support” and that George’s death was 

proximately caused by the accident. 

Subsequently, the Dodds filed suit against Tornado, alleging wrongful-death, 

survival, and loss of consortium claims. The case proceeded to trial, and the jury 

concluded that Leal and Tornado proximately caused George’s injuries. The jury 

apportioned responsibility for the accident at 30% for Leal and 70% for Tornado. In 

addition, the jury awarded the Dodds: (1) $5,000 in medical expenses; (2) $125,000 for 

physical pain; (3) $125,000 for mental anguish; and (4) $125,000 for physical 

impairment. Leola was awarded $75,000 for approximately two months’ loss of 

consortium sustained prior to George’s death. Finally, the jury rejected the Dodds’ 

wrongful-death claims. On November 10, 2009, the trial court signed a judgment 

ostensibly adopting the jury’s findings.5 Specifically, the trial court’s judgment 

awarded: (1) the Dodds $380,000 in personal-injury damages (i.e., the sum of the 

medical expenses, mental anguish damages, physical pain damages, and physical 

impairment damages awarded by the jury); and (2) Leola $75,000 in damages for loss of 

consortium. Furthermore, the trial court entered a take-nothing judgment against the 

 

5 The trial court’s judgment did not provide for recovery of damages from Leal.
Tornado Trucking, Inc. v. Dodd Page 7

Dodds on their wrongful-death claims against Tornado. The Dodds and Tornado both 

filed notices of appeal in this matter.6

II. EVIDENCE OF LEAL’S DRUG HISTORY

By its first issue, Tornado complains about the admission into evidence of the 

results of two positive drug tests taken by Leal—one occurring four years prior to the 

date of the accident and the second occurring eight months after the accident. Tornado

argues that the drug test results “are patently irrelevant” and “undoubtedly inflamed 

the jury and resulted in the excessive damage awards.” See TEX. R. EVID. 401, 402. The 

Dodds counter that Tornado did not preserve this issue because it did not object. 

Moreover, the Dodds assert that even if the complained-of evidence was improperly 

admitted, any error would be harmless because the complained-of evidence is 

cumulative of other properly admitted evidence. In response to the Dodds’

preservation argument, Tornado states that the trial court conducted a hearing outside 

the presence of the jury on, among other things, the complained-of evidence and 

subsequently admitted the evidence over Tornado’s objection, thus obviating the need 

for an objection each time the evidence was introduced.

A. Preservation of Error and Waiver

At two different pre-trial hearings held outside the presence of the jury, Tornado 

objected to the introduction of evidence regarding Leal’s drug history. Specifically, 

Tornado argued to the trial court that the admission of such evidence was irrelevant 

and would inflame the jury. The trial court ultimately overruled Tornado’s objection. 

 

6

In their notice of appeal, the Dodds do not specifically advance cross-issues for appeal; they 

merely respond to the arguments made in Tornado’s appellant’s brief.
Tornado Trucking, Inc. v. Dodd Page 8

Texas Rule of Evidence 103(a)(1) provides that “[w]hen the court hears objections to 

offered evidence out of the presence of the jury and rules that such evidence be 

admitted, such objections shall be deemed to apply to such evidence when it is 

admitted before the jury without the necessity of repeating those objections.” TEX. R.

EVID. 103(a)(1); see Jurek v. Couch-Jurek, 296 S.W.3d 864, 870 (Tex. App.—El Paso 2009, 

no pet.) (noting that error pertaining to the alleged improper admission of evidence is 

preserved by a running objection or if objected to outside the presence of the jury). 

Because Tornado objected to the complained-of evidence outside the presence of the 

jury and pursued the objection to an adverse ruling, we conclude that this issue was 

preserved for appeal. See TEX. R. EVID. 103(a)(1); see also Jurek, 296 S.W.3d at 870.

The Dodds also argue that Tornado waived this issue by questioning Leal 

regarding his drug history. This argument is unfounded, especially because the 

supreme court has held that “a party is entitled to explain or rebut evidence admitted 

over objection and is not required ‘to sit idly by and take its chances on appeal.’” 

Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1, 25 (Tex. 2008) (quoting 

Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 4 (Tex. 1986)). Therefore, even though 

Tornado rebutted the Dodds’ evidence regarding Leal’s drug history, we cannot say 

that Tornado waived this issue. See id.; see also Smithwick, 724 S.W.2d at 4.

The Dodds further argue that error, if any, in the admission of evidence detailing 

Leal’s drug history is harmless because the complained-of evidence is cumulative of 

other evidence admitted without objection. We disagree. Because rule 103(a)(1) did not 

require Tornado to object to each time the complained-of evidence was introduced, 
Tornado Trucking, Inc. v. Dodd Page 9

Tornado, by objecting to the complained-of evidence outside the presence of the jury, 

ostensibly received a running objection pertaining to each instance the evidence was 

introduced and, thus, did not waive this issue. See TEX. R. EVID. 103(a)(1). Given our 

resolution of the Dodds’ counter-arguments, we must now analyze the substance of 

Tornado’s complaints.

B. Standard of Review and Applicable Law

We review a trial court’s decision to admit or exclude evidence for an abuse of 

discretion. Bay Area Healthcare Group, Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007); 

Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). A trial court 

abuses its discretion if it acts without regard to guiding rules or principles. Malone, 972 

S.W.2d at 43. The trial court’s evidentiary ruling must be upheld if there is any 

legitimate basis for the ruling. See id. We will not reverse a trial court for an erroneous 

evidentiary ruling unless the error probably caused the rendition of an improper 

judgment or probably prevented appellant from properly presenting its case to the 

court of appeals. See TEX. R. APP. P. 44.1(a); see also Malone, 972 S.W.2d at 43; Cook v. 

Sabio Oil & Gas, Inc., 972 S.W.2d 106, 111 (Tex. App.—Waco 1998, pet. denied) (stating 

that an evidentiary ruling will result in reversal of the cause only where the whole case 

turns on that evidence). In determining whether the judgment turns on the particular 

evidence excluded or admitted, we review the entire record. Reliance Steel & Aluminum 

Co. v. Sevcik, 267 S.W.3d 867, 871 (Tex. 2008); Nissan Motor Co. v. Armstrong, 145 S.W.3d 

131, 144 (Tex. 2004).
Tornado Trucking, Inc. v. Dodd Page 10

Evidence is relevant if it has any tendency to make the existence of any fact that 

is of consequence to the determination of the action more probable or less probable than 

it would be without the evidence. TEX. R. EVID. 401. Rule 402 provides, in part, that 

“[e]vidence which is not relevant is inadmissible.” Id. at R. 402.

C. The Relevance of Leal’s Drug History

At the pre-trial hearings, Tornado asserted that evidence of Leal’s positive drug 

tests were irrelevant because this accident did not involve drugs. The first positive 

drug test occurred more than four years before the accident, when Leal worked for 

Texas Liquid. The other positive drug test transpired eight months after the accident 

occurred, when Leal drove a dump truck for Dorsett Brothers.7 However, as Tornado 

argued to the trial court, Leal was drug tested on the same day as the accident, and the 

test came back negative. Trooper Cashion, one of the investigating officers of the 

accident, testified that no drugs or alcohol were involved in this accident. Because he 

did not suspect drugs and alcohol were involved in this accident, Trooper Cashion 

allowed Leal to drive the eighteen-wheel truck about 150 miles from the scene of the 

accident to Tornado’s offices in Victoria. Based on Trooper Cashion’s testimony and the 

results of the drug test conducted on the same day of the accident, we fail to see how 

evidence of Leal’s prior and subsequent drug tests were relevant in this matter. See TEX.

R. EVID. 401, 402. Neither the Dodds nor can we articulate a legitimate reason for 

 

7 Specifically, the trial court allowed deposition testimony from Leal regarding his failed drug 

test while employed by Dorsett Brothers. Regarding that failed drug test, Leal denied ever consuming 

drugs but acknowledged that cocaine was present in his system because “this girl put it [cocaine] on my 

penis and we had sex, and I guess it got into my system like that.”
Tornado Trucking, Inc. v. Dodd Page 11

admitting evidence of Leal’s prior and subsequent drug tests, especially considering the 

record clearly demonstrates that drugs and alcohol were not involved in this accident.8 

See, e.g., Perkins v. Douglass Distrib. Co., No. 11-98-00082-CV, 2000 WL 34234578, at **2-3 

(Tex. App.—Eastland Mar. 9, 2000, no pet.) (not designated for publication).9 As a 

result, we conclude that the trial court abused its discretion in admitting evidence of the 

results of Leal’s prior and subsequent drug tests. See TEX. R. EVID. 401, 402; see also 

McShane, 239 S.W.3d at 234; Malone, 972 S.W.2d at 43. However, our analysis does not 

conclude here. We must now determine whether the erroneous admission of the results 

of Leal’s prior and subsequent drug tests likely resulted in the rendition of an improper 

judgment. See TEX. R. APP. P. 44.1(a); see also Malone, 972 S.W.2d at 43; Cook, 972 S.W.2d 

at 111.

 

8

In all fairness, the Dodds argue that the admission of Leal’s prior and subsequent drug tests are 

“relevant to the following issues raised by the pleading: Tornado’s negligence in hiring Leal; Tornado’s 

negligent failure to investigate Leal’s driving record; Tornado’s failure to properly qualify Leal; negligent 

entrustment; and, to the issue of whether such negligence was the proximate cause of the collision.” 

However, none of these theories were submitted to the jury or adequately clarified through testimony at 

trial, and Stephens, a Tornado representative, admitted that Leal hit George’s vehicle with an eighteenwheel truck and that Tornado was responsible. 

9

In Perkins v. Douglass Distributing Co., Perkins and two of his grandchildren were involved in a 

collision with a tanker truck operated by Douglass Distributing Company. No. 11-98-00082-CV, 2000 WL 

34234578, at *1 (Tex. App.—Eastland Mar. 9, 2000, no pet.) (not designated for publication). Perkins 

attempted to introduce evidence of the tanker truck driver’s “reputation for using cocaine,” including the 

results of two drug tests taken several weeks after the accident occurred which revealed “the presence of 

cocaine metabolites,” expert testimony that cocaine metabolites can remain in one’s system for seven to 

fourteen days, evidence that Douglass Distributing requested the tanker truck driver to submit to a drug 

test the day after the accident occurred, and employment records indicating that the tanker truck driver 

was suspended for refusing to submit to the drug test the day after the accident occurred and was 

terminated because of positive results on subsequent drug tests. Id. at *2. The trial court excluded the 

evidence without articulating a basis for the exclusion. Id. The Eastland Court of Appeals concluded that 

the trial court did not abuse its discretion in excluding the evidence because it was not relevant given that 

there was no evidence in the record indicating “that [the tanker truck driver] was under the influence of 

cocaine at the time of the accident” and the inclusion of such evidence “would have allowed the jury to 

speculate that [the tanker truck driver] was under the influence of drugs at the time of the accident.” Id.

at *3. 
Tornado Trucking, Inc. v. Dodd Page 12

D. HARMLESS ERROR REVIEW 

We consider several factors in conducting a harmless error review for the 

erroneous admission of evidence: the state of the evidence, the strength and weakness 

of the case, and the verdict. Reliance Steel & Aluminum Co., 267 S.W.3d at 871. Stated 

otherwise, we consider the effect of the admission of the evidence; the role the evidence 

played in the context of the trial; efforts by counsel to emphasize the erroneous 

evidence; and whether the admission of the improper evidence was calculated or 

inadvertent. See id. at 871-75. If erroneously admitted or excluded evidence was 

“crucial” to a “key issue,” the error is likely to be found harmful. State v. Cent. 

Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009). We further consider whether 

there was contrary evidence that the improperly admitted evidence was calculated to 

overcome. Id.; Nissan Motor Co., 145 S.W.3d at 144.

Here, both Stephen Sanders, a safety director for Tornado, and Leal admitted 

that Leal’s eighteen-wheel truck rear-ended George’s vehicle and that Tornado was 

responsible. With regard to George’s injuries, Luedke testified that George had neck 

pain, rib pain, and pain in his right shoulder and that the highest value George assigned 

to the pain was a six, based on a scale of zero to ten. And, George was released from 

physical therapy after only a couple of weeks. Moreover, Trooper Cashion recalled 

George stating that he was fine, refusing medical treatment, and playing his harmonica 

shortly after the accident. In addition, when he arrived at the scene of the accident, 

Richter saw George unbuckled and sitting with his feet out of the car. Richter stated 

that George was alert and oriented; did not complain of any pain, cuts, or bruising; and 
Tornado Trucking, Inc. v. Dodd Page 13

“had no loss of consciousness and [was] pain free.” George later presented himself to 

Dr. Locklear with additional health complaints; however, the record contains 

substantial evidence documenting that George, an eighty-six-year-old male, had 

numerous serious medical issues, including congestive heart failure, aortic stenosis, 

renal failure, and edema, that existed prior to the accident and that many of George’s 

subsequent health complaints were unrelated to the accident. Nevertheless, Dr. 

Locklear diagnosed George with a neck sprain and a sore wrist and prescribed Tylenol 

and Ibuprofen. Furthermore, counsel for the Dodds questioned Leal repeatedly about 

his drug use so as to accentuate Leal’s positive drug tests. And, in their appellee’s brief, 

the Dodds further accentuated Leal’s drug tests by devoting the first two paragraphs of 

their initial statement of facts to the improperly admitted evidence.

Though the record contains scant evidence of serious injuries sustained by 

George as a direct result of the accident, the Dodds were awarded $380,000 in personalinjury damages and Leola was awarded $75,000 for loss of consortium with George, 

amounts that arguably were inflated, at least in part, by the admission of evidence 

regarding Leal’s prior and subsequent drug test results. See, e.g., Demby v. Rivers, No.

01-08-00965-CV, 2009 Tex. App. LEXIS 9777, at **1-8 (Tex. App.—Houston [1st Dist.] 

Dec. 3, 2009, no pet.) (mem. op.) (affirming a jury award of $10,000 for past physical 

pain and mental anguish, $10,000 for past physical impairment, $5,000 for future 

physical pain and mental anguish, and $5,000 for future physical impairment pertaining 

to a motor vehicle collision that injured plaintiff’s neck and back and aggravated a preexisting shoulder injury; plaintiff had muscle strains and spasms as a result of the
Tornado Trucking, Inc. v. Dodd Page 14

accident; the pain was sufficient to keep plaintiff from performing daily activities); 

Ching Enters, Inc. v. Barahona, No. 01-07-00454-CV, 2008 Tex. App. LEXIS 7299, at **2-9, 

34-42 (Tex. App.—Houston [1st Dist.] Aug. 28, 2008, no pet.) (mem. op.) (affirming a 

jury verdict for, among other things, $25,808 for past pain and suffering, $10,000 for 

future pain and suffering, $25,808 for past physical impairment, $10,000 for future 

physical impairment, $25,808 for past disfigurement, and $5,000 for future 

disfigurement in a case where plaintiff broke several fingers while operating a carrotgrating machine at her place of employment; the injuries required multiple surgeries 

and caused plaintiff to feel “really awful”); Sw Bell Tel., L.P. v. Valadez, No. 2-07-129-CV, 

2008 Tex. App. LEXIS 1153, at **20-22 (Tex. App.—Fort Worth Feb. 14, 2008, no pet.) 

(mem. op.) (affirming a jury verdict of $15,000 for physical pain and mental anguish 

and $5,000 for past physical impairment in a situation where plaintiff fell in a hole 

created by Southwestern Bell, which injured plaintiff’s shoulder, required surgery to 

reattach ligaments in the shoulder, and caused plaintiff “excruciating pain”); Delta 

Drilling Co. v. Cruz, 707 S.W.2d 662, 667 (Tex. App.—Corpus Christi 1986, writ ref’d 

n.r.e.) (reversing a jury award of $60,000 for loss of consortium in a case where 

plaintiff’s husband was seriously injured from an elevator falling from a drilling rig 

floor to the ground because the wife did not testify and the husband’s testimony did not 

amount to evidence of the loss of “the emotional or intangible elements of the martial 

relationship”). Because we conclude that the trial court abused its discretion in 

admitting evidence of Leal’s prior and subsequent drug test results and that the 

admission of such evidence likely resulted in the rendition of an improper judgment, 
Tornado Trucking, Inc. v. Dodd Page 15

we sustain Tornado’s first issue. Given our resolution of Tornado’s first issue, we need 

not address Tornado’s remaining issues. See TEX. R. APP. P. 47.1.

III.CONCLUSION

Having sustained Tornado’s first issue, we reverse and remand for a new trial.10

AL SCOGGINS

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Reversed and remanded

Opinion delivered and filed July 6, 2011

[CV06]

 

10 The Dodds argue that if we determine that a remand of their survival and loss-of-consortium 

claims is necessary, we should exercise our discretion to remand the wrongful-death claim—a claim the 

jury rejected and the trial court entered a take-nothing judgment upon—in the interest of justice. The 

Dodds cite two cases for the proposition that a partial remand is improper unless the issues involved are 

severable. See State Dep’t of Highways & Pub. Transp. v. Cotner, 845 S.W.2d 818, 819 (Tex. 1993) (per 

curiam); Polley v. Odom, 957 S.W.2d 932, 941 (Tex. App.—Waco 1997), judgm’t vacated, 963 S.W.2d 917 

(Tex. App.—Waco 1998, no pet.). We note that the Dodds’ survival and loss-of-consortium claims are 

distinct causes of actions that are severable and that the Dodds did not argue any cross-issues in their 

appellees’ brief; in particular, on appeal, the Dodds did not complain about the trial court’s take-nothing 

judgment as to their wrongful-death claims. See TEX. R. APP. P. 38.1(i); In re Labatt Food Serv., L.P., 279 

S.W.3d 640, 646 (Tex. 2009) (orig. proceeding) (stating that loss-of-consortium claims are fundamentally 

different from a statutory wrongful-death claim and that loss-of-consortium claims are “separate and 

independent claims distinct from the underlying [wrongful-death] action”); Landers v. B.F. Goodrich Co., 

369 S.W.2d 33, 35 (Tex. 1963) (noting that survival actions and wrongful-death actions are separate and 

distinct causes of action); see also Andrews v. Rodeo Square Apartments, No. 01-05-00548-CV, 2006 Tex. App. 

LEXIS 6415, at *9 n.3 (Tex. App.—Houston [1st Dist.] July 20, 2006, no pet.) (mem. op.) (same). We, 

therefore, reject the Dodds’ assertion that a remand of this case includes their wrongful-death claims.