Affirmed and Opinion filed March 24 , 202 2
.

In The 

## Fourteenth Court of Appeals

NO. 14

- 20

- 00250

- CV

CENTERPOINT ENERGY HOUSTON ELECTRIC, LLC , Appellant
V.
HOWARD E. COLEMAN AND COLEMAN UPHOLSTERY, INC. , Appellee s
On Appeal from the 295th District Co u rt

Harris County, Texas Trial Court Cause No. 2012

- 19169

O P I N I O N
In the aftermath of a fire th at destroyed buildings , e quipment , and vehicles , Howard E. Coleman and his business Coleman Upholstery, Inc. (collectively,

“ Coleman ” ) sued CenterPoint En ergy Houston El e c t ric, LLC , alleging that CenterPoint ’ s negligence in relation to maintenance of an electrical transformer on the property caused the fire. A fter a jury found CenterPoint ’ s negligen ce proximately caused Coleman ’ s damag es , t he trial court re mitt ed a porti o n of the2

d amag es and entered a final judgment awarding Coleman $5,835,044.49 plus post

judgment interest

. Both sides appe aled

. In its first issue , CenterPoint contends that the trial court lacked subject matter jurisdiction be cause Coleman f ailed t o exhaust his administrative remedies with the Public Utility Commis sion (PUC) b efore filing this lawsuit . In its second, third, and fourth issues, CenterPoint challenges the suf ficien cy of the evidence to support the jury ’ s findings that CenterPoin t b r e a ched the app licable standard of

care and proximately caused Coleman ’ s damages and the amount of damages awarded by the trial court . And i n its fifth issue, Cente rPoint contends the trial court erred in overruling CenterPoint ’ s objections to certain e vid e n ce relat ing to all e ged injury to personal and business credit.

In one cross

- appeal issue , Coleman assert s that the trial court erred in remitting a portion of the damages found by the jury. Finding no error in the judgment , we affirm

. Backgrou n d

In t he early morning of Octob er 15, 2010 , a fire starte d on the premises of Coleman Upholstery, a n automobile upholstery business owned by Howa rd Coleman. The fire resulted in significant damage to bui l dings , equipment , and vehicles on the Colem an prop e r ty as well as damage to a neigh b o ring prop ert y
. The appar ent origin of the fire

— near a utility pole at the edge of the Coleman property

— was captur ed by a security camera on the Coleman prem ises

. About five weeks before the fire, Colema n experien c ed a pow er outag e after the tran sformer on the utility pole was re p ortedly emitting sparks and later a loud popping sound. In two visits to the property, CenterPoint t echnicians performed repairs and restored po wer

.3

A t the conclusion of their investigation af ter t he fire , Harris Cou nty Fire Marshal invest igators c oncluded , based on se veral indicators , that the fire originated
within the immediate vici n ity of the electrical distribution pole located between the two properties. Video surveill ance cameras capture [d] a n i nitia ting eve n t withi n the area of o ri g in at 2:43:21 . The initiating
eve nt captured on video is an intense, brief illumination characteristic of electrical activity. Investigators observed that a large copper gro und wire (appro xi mately 1 / 4 ” to 3/8 ” in d iam eter) runn ing from th e transformer on t he electrical distribution pole to t he ground was unacco unted for. Tw o small sections of the ground wire were secured to the pole in line with the path that would have traveled from ground to the transformer. Sever al porti ons o f melted co pper were found in the soil at the base of the po le. T he so i l at the bas e of the pole was covered with many smaller pieces of copper. Copper typically melts at 1981 degrees Fahrenheit. Outdoor fires consuming ordinary combustib les s uch as w ood w ill not typ ically reach the t emperatures necessary to mel t copper . The intens ity of d amage to the copper ground wire is indicative of an electrical anomaly. It is pr o bable that this fire was the r esult of the ignition o f dry vegetation fr om a fug itive spar k or ember that result [ ed ] fr om an unspecified electrical anomaly from the ele ctrical distribution system. In 2012, Coleman and the owners of the neighboring propert y sued CenterPoint for damages result ing from the fire, alleging that Cen terPo int ’ s

ne gligen ce in relat ion to maintaining the transfo rmer and related equipment caused the fire . The plaintiffs designated M ichael McGraw as the ir expert regarding the transformer and the cause of the fire. CenterPoint filed a motion to exclude McGr aw ’ s tes timon y, asserting that he was not qualified t o opine reg arding the

cause of the fire , the workings of the transform er , or the standards of care applicable to a utility

. The trial court granted the motion to exclude McGraw ’ s testimony and a subseque nt no

- ev idenc e motion for summary judgment, t he4

plai ntif fs appealed, and we reversed and remanded in a prior opinion, holding McGraw wa s qualified to testi fy

. Cura

- Cruz v. CenterPoint Energy Houston Electric, LLC , 522 S.W.3d 565 (Tex. App.

— Houston [14th Di st.] 201 7, pe t. denied ). On remand, the owner s of th e ne ighboring property settled with CenterPoint and trial proce eded onl y on Coleman ’ s claims. The jur y heard testimony from Coleman , his wife, and some of his employees regarding the operation of Coleman Uphol ste ry an d the imp act of the fire on the b usines s ; the CenterPoint technicians regarding the work they perfo rmed on the tra nsfor mer ; Coleman ’ s technical expert McGraw and financial expert James Clayw ell ; and CenterPoint ’ s technical expert Jeff Hautanen and fin ancia l expert Jeffrey Com pton

. Other evidenc e the jury received incl uded the f

ire m arsha l reports, the video showing the start of the fire, numerous photographs taken of the transformer and the scene of the fire , and Coleman ’ s financial sta tements and t ax retur ns. Because the testimony of ea ch side ’ s technical expert is key to multiple issues in this appeal , we will describe it in some detail here. Other testimony and evidence will be presented as needed in the analysis section of the opinio n

. McGra w , Co lem a n ’ s technical expert, began his testimony b y detail ing his qualifications and his investigation into the cause of the fire

. McGraw has been involved in circuit design and manufacturing of medium voltage electri cal equipment since 1978, including t estin g a nd fa ilure analysis. He con curred with the f ire m arshal ’ s office that the fire was likely caused by an electrical anomaly from the elec trical dist rib ution system when a gr o und fault led to a n arc flash or plasma discharge

. McGraw opined that the fa ilure of thre e safety components contributed
to the cause of the fire: (1) the hi gh

- voltage ( HV) bushing, an insulated ceramic device attached at the top of the transformer that functions as the entry point for the5

high voltage from t he electrical power gr id in to the t ransf ormer and from or ne ar which the a rc flash originated ; (2) the ext ernal fuse , which should have cleared or blown , thus stoppi ng the flow o f energy , but failed to do so f or an extended period of time ; and (3) the copper ground wire that ra n fro m t he tr ansformer down the pole and into the gr ound and was int ended to provide a path for fault current to go into the ground

. Based on physical evidence he observed at the s cene and his interpretation of the vi deo , McGraw opined that prior to the f ire s tar ting, the HV bus hing on the transformer beca me compromised , permitting an arc flash or uncontained voltage in or near the HV bushing that first went to the transformer tank and then flashed over to the equi pment ground when the bushing ruptured . Wh en th e v oltag e proceeded down the ground wire, w hich McGraw referred to as a “ very small conductor, ” the wire was ripped apart, melted, and vaporize d. The arc flash then contacted dry vegetation at the base of the pole, starting the fire. Molten copper fr o m the gr ound wire hitting the vegetation may hav e also contributed to start the fire. A couple gallons of the i nsulating mineral oil inside the transformer was expelled when the HV bus hing ruptured and it s seal on the transformer broke. The highly flammabl e oil li ke ly add ed fuel to the fire at the base of t he utility pole. D uring the fire, the external fuse ev en tually cleared, stopping the voltage and cutting off power to the security cam era. After the fire, the HV bushing was found to have broken , and the insid e o f the bushing had black marks that McGraw id entified as carbon from the arc flash. He also observed signs of the arc flash inside the transformer tank , including more black markings and bubbling of the tank coating

. McGraw opined that the exerc ise of o r din ary a nd reasonable care commensurate wit h the danger involved dictat e d that each of these three safety6

components be installe d in a proper and dielectrically consistent manner and maintained in good working condition to prevent an event like the on e in que stion from occurring. 1 He explained that i t is nece ssary to regularly inspect, maintain, and repair or replace these three safety components to keep them in good working condition and , in reasonabl e scientific and engineering certainty, if the thre e saf ety
comp onents are maintained in good worki ng condition throug h proper in stallation, inspection, maintenance, repair , and replacement, it is more likely than not that they will not fail and instead w ill work properly and thereby prevent an event like the one in qu estion from occurring

. And t his ca n be accomplished a t a reasona ble cost consistent with good business practices, reliability, safety, and expedition. McGraw specifically faulted CenterPoint because its techn icians , who responded to the power outa ge five w eeks before the fire , only perform ed , in the words of one of the technicians, a “ cursory visual inspection ” of t he transformer
compo nents and did not conduct diagnostic testing to determine the cause of the

ea rlier problem s

. He sa id that the re por ted overh eatin g of the bus work and blowing of the fuse would have caused him concer n. He specifically sug gested CenterPoint h ad a responsibility under the circumstances to conduc t either a

“ Megger test ” o r a “ high potential test ” of th e transformer a nd sp eci ficall y the HV bushing to make sure there was no lea kage current or compromise to ground

. According to McGraw, although a hig h potential test can be time

- consuming because it requires removing the transformer , a Megger test is n ot time

- consuming

an d nei the r test is expensive to conduct. He further asserted that many of his client utili ties keep handheld Megger d evices on their t rucks but CenterPoint does not routinely provide them to their technicians. A Megger d evice i s used to inject voltage into the equ ipment being tested and then measure to mak e sure that no

1 “ Dielect ric ” as an adjec tiv e means “ [h ]a ving t he property of transmitting electric force without conduction ; insulating. ” Concise O x ford English Dictionary 399 (1 2th ed. 2011 ).7

pa rtial discharges or l eakage currents are occurrin g. He explained that with a n oil

fill ed tran sformer , such as the one at issue here, a cursory visual inspection will not reveal the conditi on s i nsi de the tank and “ the only way you can determine if something is wr ong is to t est. ” Referring to recurring issues with the same transformer , McGraw sai d that if you get that many service calls on one piece of equipment i n a very short period of tim e, mo nth s, it ’ s a pretty good indication that that ’ s a t rouble area and y ou need to i nvestigate and test more to find out why you keep having to go back. [I] f it had been my transformer and I kept having problems with the same tran sformer and the sam e ser vic e drop
over a nd over again, I ’ d be all over it, trying to figure out what it is that ’ s really causing all these i ssues, because ultimately a t 19 [kilov olts] , if you have a whoops, it ’ s catastrophic.
McGraw concluded that CenterPoint failed to exerc ise r eas onable judgme nt

un der the circumstances and breached the standard of care. He said that w hen put
on not ice that t he transformer had experienced a ground fault, CenterPoint had a duty to determine the cause rather than just replacing a few component s and
pu tting the tra nsformer back into service. Regarding the failure of the ground system to contain the voltage, McGra w indicated the system was too small and too weak for the voltage involved. He explained that th e ground wire c a me down the utility pol e fro m t he transforme r , into the ground , and then went underneath the pole. He said that it need ed to be designed and engineer ed properly in the beginning, which requires installation in a dielectrically consistent manner for the applied voltages. He sugge sted had the ground g rid been “ stronger, larger , ” the wire would likely not have melte d. McGraw did not offer specific criticis ms regarding the external fuse other than the fact that it failed to clear in response to the arc flash and had rec ent ly been repl aced by CenterPoint

.8

On cross

- examination, McGraw acknowledged that he could not sta te the
exact reason why the security camera conti nued to operate after th e fire began. H e further agreed that he had no specific criticism of the work that the technicians
actu all y performed under the circumstances and could not say that anything they did c a used the fire or was negl igent. He admitted he did not know of any specific utility th at had a transformer maintenance program that required high potential or Megger tes ting on a reg ular ba sis.
CenterPoint ’ s technical expert, Jeffrey Hautanen , also began his testimony by describing his qualifications and investigation

. Hautanen a dmitted he did not know what caused the fire but insisted it was not ignited by an electrical ano m aly from the po wer system, as determi ned by McGraw and the fire marsha l investig ators. Hautanen noted the presence of metal barrels on the proper ty with ind ications th at something had been burned inside of them prior to the fire. He also noted that at leas t o ne of the po wer cords that stretched across the property exhibited signs of h aving experienced “ arcing effect s

. ” A nd he noted a battery on the pr operty that could h ave been an ignition source and suggested a n employee could have been smoking in the area

. Hautanen wen t through the video of the fire for the jury and concl uded that
t he fire did not start at the base of the utility pole but some dista nce away fr om the
p ole. He also explained that if the re had been an electrical system anomaly, one

w oul d exp ect to see “ flu tters, fluctuations ” o n the video and a camera connect ed to the s yste m would typically “ drop out. ” H e opined i nstead that the video r ecording f i nally sh ut off when the fire got into the trees and thereby impacted the main electricity tr ansmi ssi on line

. Ha utanen further questioned several of McGraw ’ s conclusions . He disagreed with McGraw ’ s hypothesis that the copper ground wire w as rip ped apart, melted,9

and vaporized by electrical arcing and instead assert ed the fire, infused b y win d, had gotten ho t enough to melt the copper. Haut anen also rejected the idea tha t a flashover had occurred within the transformer tank , stating that there would ha ve b een a l oss of metal from the tank itself if that had occurred. He maintained that th e fra ctu r ing of the HV bushing and loss of oil from the tran sformer tank were the

res ult o f high temperatures from the fire and were not related to the cause of the fire

. H autanen asserted that he tested the transfor mer after the fire and does not believe that it failed

. He concluded t hat nothing about the condition of the transformer comp onents indicated a corona o r flashover had developed. He said that he has never seen fu ses on a tra nsformer fail to clear timely; he acknowledged that there are conditions unde r w hich a fuse disco nnect can “ hang ” after a fuse element b lows but asserted tha t did not occur in this inst anc e

. Hautanen further discounted the fire marshal investig ators ’ conclusion s by explaining that they look for signs of arson and are not looki ng to as sign cause or fault fo r private sector pu rposes. Accordingly, he said, the ir investigation is often preli minary and lacks follow

- through testing and analysis. He pa rticularly thought that their decision to eliminate the power cords on the property as an ig nition

source , because none of the breakers to which they were ass igned had tripped , was a poor dec ision.
On cross

- examination, Hautanen state d that he has spent his career as a forensic engineer, spending 8 0

- 90 percen t of his time on claims and la wsuit s. As of the date of this trial, h e ha d testified in depositions or trials 87 or more times and had wo rked in this capacity on behalf of CenterPoint for approximately twenty
y ears. Hautanen explained that he di d not make a determination on the cause o f th e fi re because some eviden ce had not been re tained , but he acknowledged he was given unfettered access to the site after the fire. He said that he h as never seen a10

tran sformer maintenance pr ogram in the United States; instead, utilities rely on outages and sma rt meters to know when to service transformers. The jury charge was comp rised of only two questions

. Question 1 asked ,

“ Did the negligence, if any, of CenterPoint

. . . proximately cause the occurrence in
qu estion? ” Ne gligence was defined in the ch arge as the “ fai lure to use or dinary care, that is, failing to do that which a public utility of ordinary p rudence would have done under the same or similar circumst ances or doing that which a p ublic utility of ordi nary pruden ce would not have done under t he sa me or simil ar circumstanc es. ” Question 2 was contingent on Q uestion 1 and asked the jury what

s um woul d compensate Coleman for certain ty pes of possible damages. The jury answered “ yes ” t o Q uest ion 1 and found damages in respons e to Question 2 in the

amoun ts of $3 ,633,91 7 for past lost profits , $80 3,957 for past property damage, $450,00 0 for past damage to personal and business credit, and $50,000 for future damage to personal and business c redit.
Am ong other post

-

judgment filing s, CenterPoint moved fo r a r emi ttit ur of lost profits damages

. The trial court then suggested a remittitur , which Coleman accepted while preserving the right to a ppeal. The remitti tur reduced the amount of lost profits damag es awarded from $3,633,917 to $2,763,435

. In an amended f i na l j udgment, t he trial cou rt awarded Coleman a total of $5,835,044.49 in damages and prejudgment intere st p l u s p o s t

- judgment interest

. Both sides appe aled.
I. CenterPoint ’ s Appe al
As stated above , CenterPoint challenges the trial cou rt ’ s ju risdi cti on as well as the sufficiency of the evidence to support liability and damages and the trial
court ’ s overruli ng of certain eviden tiary objections. We begin our discussion with the jurisdictional challenge.11 A
. Jurisdiction
In it s fir st issue, CenterPoint contends that the trial court lacked su b ject matter jurisdiction over this dispu te because the PUC has exclusive original jurisdiction over issue s unde rlying Coleman ’ s c laims and Coleman failed to exhaust administrative remedies with the PUC before filing th e lawsuit. Subject

matter jurisdictio n is essential to a court ’ s power to deci de a case and can be raised at any time. See City of Houston v. Rhule , 417 S.W.3d 440, 44 2 (Tex. 2013) ; Alfonso v. Skadden , 251 S.W.3d 52, 55 (Tex. 2 008). 2 W hether a trial court has subject matter jurisdiction is a question of law, to which we apply a de n ovo standard of review. Minton v. Gunn , 355 S.W.3 d 634, 639 (Tex. 201 1).
1
. Govern ing Law
A li ne of recent Texas Supreme Court opinions has exp lored the q ues tion of when common law claims such as torts or breach es o f contract fall within the scope of the P UC ’ s exclusive original jurisdiction

. See In re Oncor Elec. Delivery Co. , 630 S.W.3d 40 (Tex. 2021) ( holding personal injury action against utility

a llegi ng negligence and consumer

- protection violations stemming fro m customer ’ s sustaining electric shoc k injuries while trimming tree limbs near a power line did

n ot have to begin in the PUC ) ; In re CenterPo int Energy Houston Electric, LLC , 629 S.W.3d 149 ( Tex. 20 21) (plurality op.) ( holding wrongful

- death action against utility stemming from con tact with d owned power line and alleging negligence in

2 Coleman argues that Cent erPoint ’ s jurisdictional argument is barred by the doctrine o f estopp el by la che s. Subject ma tter j uris diction , i.e., a court ’ s power to hear a case , cannot be created by estoppel

. See, e .g., Wilmer

- Hutchins I

. S

. D

. v. Sullivan , 51 S.W.3d 293, 294 (Tex. 2001) (per cu riam) ; San Jacinto River Auth. v. P axton , No. 03

- 18

- 00547

- C V, 2019 WL 39 52829, at * 4 (Tex . App.

— Austin Aug. 22, 2019 , no pet. ) (mem. op.). And , as indicated above, a question regarding a court ’ s jurisdict ion can be ra ised at any time. See Alfonso , 251 S.W. 3d at 55

. Coleman does not cite any authority carvi ng out a n except ion f or estoppel by la ches.12

the selection of fuse size for the line did n ot have to begin in the PUC ) 3 ; In re Tex

. - N

. M

. Power Co. , 625 S. W.3d 42 (Tex. 2021) ( holding pr operty damage claims resulting from wooden utility construction mats car ried by floodwaters did not have to begin in PUC ); Oncor Ele c. Delivery Co. LLC v. Chapar ral Energy, LLC , 546 S.W.3d 133 (Tex. 2018) ( holding breach of c ontra ct action had to begin in the PUC whe n plaintiff complained o f a failure to timely provide electr ic al service and resolution of claims required interpretatio n of utility ’ s PUC

- approved t ariff )

. Within these opinions, the c ourt has grappled with the c ontra sti ng purposes of the State ’ s regulation of public utilities, which “ acts as a counterweight to pu blic utility monopolies, ens uring that they charge fair rate s and adequately provide vita l services , ” and the tort system, th e “ fundamental purpose s ” of which “ a re to deter wrongful conduct, shift losses to responsible p arties, and fairly compensate deserv ing victims.” In re Oncor , 630 S.W.3d at 43 ( respectively ci ting Tex. Util Code § 31.001 and quoting Roberts v. Williamson , 111 S.W.3d 113, 118 (Tex. 200 3) )

. “ Re gulation , ” the court has further explain ed , “ is the governm ent ’ s prospective ordering of market place conduct , ” whil e “ tort lawsuits are retroactive

case

- by

- case correctives

. ” Id

. There are, however , circumstances under which tort and other common l a w ac tio ns must begin in the PUC. As instructed by the supreme cour t, our analysis of this issue begins with the presumption that district courts are constitutiona lly empowered to resolve lega l

3 In In re CenterPoint , the plurality opinio n was joined by four justices

. 629 S.W.3d at 152. A concurring ju stice agreed that under established precedent , the d isposition was correct ( “ t he plaintiffs here are no t the ‘ k ind of “ aff ec ted person ” who m ay bring a claim to the Commission ’ and have not b rought ‘ the kind of claim that the Commission can adjudicate ’ ” ) b ut declined t o join the plurality opinion. Id . at 16 6 (Boyd, J., concurring). Two justices dissent ed , a nd one ju stice di d n ot participat e in t he decision. Plurality opinions of the Texas Supre me Court do not constitute binding precedent but may be cited as persuasi ve au thority

. See Cincinnati Life Ins. Co. v . Cates , 927 S.W.2d 623, 626 (Tex. 1996); D.M. Dia mond Corp . v. Dun bar A rmored, Inc

. , 124 S.W.3d 655, 659 n.6 (Tex. App.

— Houston [14th Dist .] 2003 , no pet. )

.13

disputes. See Chaparral Energy , 546 S.W.3d at 138 ; see general ly Te x. Const. art. V, § 8. To overcome that presumption, the c onst itution or a statute must grant excl usive jurisdiction to another court or an administrative age ncy. See Chaparral Energy , 54 6 S.W.3d at 138

. A dministrative agenc ies do not enjo y the jurisd ictio nal presumption of district courts but are legislative creatio n s with only such powers as

are expr essly conferred and necessary to accom plish their duties. Se e i d

. A state
agency has excl usive original jurisdiction when the l egislature has granted th e agen cy sole authority to make an initial determination in a disput e. I d . When an
agency has exclusive jurisdiction, courts lack jurisdiction until the party has

e xhausted all available admini strative remedies before the agency. Id

. Whether an agency has e xclus ive jurisdiction is a question of statutory interpretation tha t we review de novo. Id

. It is the b urden of the party resisting the distr ict court ’ s jurisdicti on to demonstrate that an age ncy has exclusive original jurisdiction. In re Oncor , 630 S.W.3d at 4 4

– 4 5 ; In re CenterPoint , 629 S.W.3d at 156

. The legislature ma y grant an agency e xclusiv e original jurisdiction via either of two methods. A statute expressly grants an agency exclusive j urisdiction when its language clearly expresses an intent for th e age ncy to have exclusive jurisdict ion over matters governed by th e statute

. Chaparra l Energy , 546 S.W .3d at 138 . In the absence of an explicit grant, an agency m ay still have exclusive juris diction when a “ pervasive regulatory scheme ” indicates the l egis latur e i ntended for the regulatory pr ocess to be the exclusive mean s of remedying the problem to which the regulation is addressed. I d

. CenterPoint is a public ele ctric utility regulated by th e PUC. 4 The Texas Public Utilit y Regulatory Act (PURA) grants th e PUC br oad powers to “regulate

4 The PUC ’ s authority is to some degree limited based on ge ographical location . It is undisputed i n this case that the property in question was with in the PU C ’ s area of p rim ary auth ority. See generally Tex. Util. Code § § 32.001, 33.001(a ).14

and supervise the business of each public utility with in its jurisdicti on and to do anything specifically designated or implied by [PURA] that is necessary and convenient to the exercise of t hat power and jurisdiction.” T ex. U til . C ode § 14.001. In regard to electric utilities , t he purpose of PURA “is to esta blish a comprehen sive and adequate regulatory system

. . . to assure rates, o perations, and services that are just and reasonable to the consumers and to the electric uti litie s.” Id . at 31.001(a). The PUC ’ s jurisdiction is limited in par t by the legislatur e ’ s stated object ive in enacting PURA, that it was “for the purpose of regula ting rates and services so th at such rates may be fair, just, an d reasonable, and the service s ade qua te and efficient

. ” In re Oncor , 630 S.W.3d at 46 (quoting P ublic Utility Regul atory Act, 64th L eg., R.S., ch. 721, sec. 17 (a) , 1975 Tex. Gen. Laws 2327, 23 34

– 35 (codified at T ex . R ev

. C iv . S tat . art. 1446c, § 17) )

. That the PUC was created as a reg ulato ry body also prov ides a limitation on its authority to adjudic ate disputes; essentially, it ca nnot adjudicate what it does not r e gulate. See id . at 46

- 47. Within t hat li mitation, PURA gra nts the PUC exclusive original jurisdiction both
expres sly and b y the cr eation of a “ p ervasive regulatory scheme

. ” See In re Center Point , 629 S.W.3d at 156 ; Chapar ral Energy , 546 S.W.3d at 13 9. The question then is whether Coleman ’ s claims fall within the scope of the exclusive original jurisdiction provided in PURA su ch th at they must start their pat h toward resolution at the PUC

. 5 C enterPoint argues that the PUC h as e xclusive original jurisdiction in this case both because Coleman is an “ affected person ” expressly eligible to file a complaint und er PURA and because Co leman ’ s claims involve underlying is sues that fall within PURA ’ s pe rvasive regulatory scheme

. We will

5 When issues underlying a c laim fall within the PUC ’ s jurisdicti onal scope but the complaining party seeks a reme dy that the PUC cannot provide, such as damages, r esolution may req uir e a two

- step proces s, where the PUC first resolves questions within i ts purview and then a court determines the remaining issues necessar y for reso lution of the claim. See Chaparral Ener gy , 546 S.W.3d at 141

- 42.15

a ddress each assertion i n turn.
2
. “ Affected Person ”

P ursuant to Utilities Code section 15 .051 , “ [a] n affected person may complain to the regulatory autho rity in writing setting forth an act or omission by a public utilit y in violation or claimed violation of a law t hat the r egulatory authority has jurisdicti on to administer or of an order, ord inance, or rule of the regulatory authority. ” Tex. Util. Code § 15.05 1. As relevant here, the Code defines “affected persons” as pe rsons “whose utility service or rate s are affe cted by a proceeding before a regulatory au thority.” Id . § 11.003(1)(B)

. CenterPoint f

irst emphasizes that Cole man was a CenterPoint cust omer at th e t ime of the fire and Coleman ’ s claims allege negligence in r egard to equipment that provided ele ctrical se rvices to Coleman ’ s property. CenterPoint i nsist s that Coleman was an “ affected person ” under PURA because he was a customer

“ whose utility ser vice [ wo uld be ] affected ” b y a proceeding before the PUC. Id

. Cente rPoint further asserts that any det ermination regarding whether it was negli gent in its maintenance of the transformer and o ther equip ment “ would directly impact the manner in which Center Point pr ovides electrical service to Appellees and its other custome rs. ” Although Coleman was undoubted ly a custo mer at the t ime of the fire, his claims do not complain about his rate s or his service. As described in detail above, Coleman alleges that Cent erPoi nt ’ s negligence in r e g a rd to the transformer and rela ted equip m ent caused a fire on his pro perty. Coleman does not complain about
rate s charge d , a failure to provide timely service , the adequacy of his service, or an interruption to his servi ce. In I n re Onc or , the supreme court conclud ed that an electric utility may not compel a plaintiff who a lleges a common law personal injury c laim t o initiate the claim in the PUC unless the claim com plained about16

rates or the provision of electrical service (i.e

. , “li ght s on or off ” as the supreme court phrased it ) . 6 30 S.W.3d at 43 ; see also In re CenterPoint , 62 9 S.W.3 d at 1 57 ( expla ining that plai ntiffs in that case were not “affected person s ” unde r PURA because “ none of the issues underlying their claims compl ain o f a statutory or regulatory violation affecting their utility se rvice or rates. ” )

. The same reason ing can be applied in this case where Coleman does not complain about rates or services

. CenterPoint ’ s argument that Coleman was an affected person becau se th e

m anner in which it provides services to all of its customers c ould be impacted by a determ inatio n in this case shoots too broadly. If that were the standard, it is difficult to imagine a lawsuit in which a utility could not claim that a determinatio n in the case would impact how it operated in the future. That is not the standard.
The court in In re Oncor further noted that the personal injury claim in that

c a se could just as easily have been brought by a non customer and arose in part from Oncor ’ s du ty to ma intain premises that it occupied, i.e., its utility easement across the plaintiff ’ s prope rty. 6 30 S.W.3d at 49 ( “ While the provision of electricity service (and its timeliness) falls s quarely in the regulatory sphere, a duty alleged against an occu pier of the premises does not. ” )

. Here, Coleman essentially alleged h is damages resulted from CenterPoint ’ s f ailure to properly maintain its equipment , whi ch was on a utility easement on Colem an ’ s property

. Although Coleman received services from CenterPoi nt , h is complaint is not about the services but about CenterPoint ’ s a lleged failure to properly in stall , inspect , maint ain , repair , and repl ace its equipment to avo id starting a fire

. Mo re specifically, Coleman alleged CenterPoint ’ s negligence resul t ed in th e equipment failing to contain the voltage coming into the transfor mer , which resulted in the ig nition of dry vegetation at the base of the utility pole on Coleman ’ s p roperty. CenterPoint offers no argument as to why Coleman could not have made the same17

cla im had he not been a CenterPoint customer , for example , if his p ro perty had been undeveloped an d not receiv ing electrical ser vices or , as occurred for the other original plainti ff s in this very lawsuit, he had owned a neighboring property to the

on e wit h t he utility pole and easement. Th e mere fact that Coleman ’ s claims may be tangentially related t o the fact that he was receivi ng electrical services from CenterPoint does not ren der him an affected person under PURA. See i d

. at 43.
3 . Pervasive Regu lator y S cheme Additionally, the PUC does not pos sess exclusive original ju risdiction over Coleman ’ s cla ims under PURA ’ s pervasive reg ulatory scheme because Coleman ’ s allegations do not concern issues that the PUC actually regulates. See i d

. at 47 (explaini ng th at PUC adjudicatory jurisdict ion is limited to issues that implicate regulatory matters), 51 (expl aining that the legislature ha s not commanded that agency jurisdiction turns solel y on wh ether the injured party “ happens to be a utility customer or oth er ‘ a ffe cted person ’ ” ) ; In re CenterPoint , 629 S.W.3d at 161

- 64 ( holding t hat although PUC had exclu sive ju r isdiction to regulate issues

u nderlying plaintiff ’ s claims, because it had not don e so a n d no other law that it was empowered to adjudicate did so , it di d n ot ha ve jurisdiction to adjudicate those issues )

. At the outset, w e note that CenterPoint h as miscon strued Coleman ’ s all egations. CenterPoint describes Coleman ’ s allegations as asserting CenterPoint negligently failed to ( 1) adopt a formal , proacti ve ma int enanc e program for it s transformers and (2) provide all of its ser vice technicians with Megge r devices and mandate the regu lar use of such devices in maintaining its transformers. CenterPoint , however, does not cite to where Coleman alleged eithe r o f the se things , much less limited him self t o these theories

. As set forth in detail above, M cG raw , Col eman ’ s technical expert , generally18

asserted that CenterPoint ’ s failure to pro perly in stal l , inspect , maint ain , repair , and replace its equipment pr oxima tel y cau sed the fire. More specifically, he faulted CenterPoint for only vi sually inspecting the transfo rmer and related equipment after having repeated p roblems and not conducting diag nostic t esti ng . He opined
t hat given the history of problems, Cent erPoi nt had a responsibility to conduc t either a “ Megger test ” o r a “ high potent ial test ” of th e transformer and HV bushing to make sure there was no lea kage c urrent or compromise to ground rath er than just replacing a few components and putting the transf ormer ba ck in to service

. According to McGraw, “ if you get that many service call s on one pi ece of equipment i n a very short period of time, months, it ’ s a pretty good indication that that ’ s a t rouble area and y ou need to investigate and test more to find o ut wh y y ou ke ep having to go back

. ” McGraw additionally criticized the s ize and strength of the ground grid a ttached to the transformer, explaining that it require d installation in a dielectri cally consistent manner for the applied voltages. Although McGra w men tio ned t hat many of his client utilities keep handheld Megger d evices on th eir t rucks , he did not specif ically fault CenterPoint for failin g
to provide all of its technicians with Megger devices and mandate the regular use of such devices in maintaini ng it s t ransf ormers , as CenterPoint suggests. Instead, McGraw merely said that t hey should have performe d diag nostic testing under the circumstan ces presented in this case

. Like wise, while McGr aw suggested that a formal service program for transformers woul d be “ va luabl e to their system, ” he did not testify that CenterPoint breached t he standard of care in this case by failing to have a form al, proactive maintenance program f or all of it tran sformers

. Again, i nstead, he fa ulted CenterPoint for not performing diag nos tic t esting on this one transformer and related equipment under the cir cumstances presented and for not properly in stall ing , insp ect ing , maint ain ing , repair ing , and replac ing its equipment

.19

That said , we turn to the qu est ion of whether the issues u nderl yin g the se claims fall within the scope of the PUC ’ s adjudicatory jurisdic tion. As discussed, at the heart of the allegations is whe ther CenterPoint properly install ed , in spect ed , maintain ed , repair ed , and replace d its equipment and whether it had a d uty t o p erfor m diagnostic testing on the transformer and related equipme nt give n its alleged recent history of problems or whether simply repla cing some comp onents and placing the transformer back in service met the appl icable standard of care

. As describe d bel ow, we c onclude that none of the PUC regulations cited by CenterPoint d isp lace the common

- law standard of care with respect to the se issues and whether that standard has been met in individual cases is not a questi on of rules or regulations within th e PUC ’ s pur vi ew. See In re CenterPoint , 629 S.W.3d
at 16 2. Accordingly, PURA ’ s p ervasive regulatory scheme does not give the PUC exclusiv e original jurisdiction because the par ties ’ dispute does not involve PUC regulator y action

. See i d . at 163.
CenterPoin t cit es three provisions of the Texas Administrative Code , Title 16, in support of its position that the PUC regulate s these issues. 16 T ex. Admin. Code §§ 25.52(b)(1) , (4), 25 .101(d)

. Th e portions of these provisions on which CenterPoint relies read as fol lows:

• Se ction 25.52(b)(1) : “ E very utility shall make all reasonable efforts to prevent interruption s of service.”

• Section 25.52(b)(4) : “ E ach utility must maintain adequately t rained and experienced personnel throughout its service area so that the utility is a ble to f

ully and adequately comply with the service quality and reliab ilit y standards.”

• Section 25.101(d) : “ E ach electric utility s hal l c onstruct, install, operate and ma intain its plant, structures, equipment, and lines in20 accordance with [ provision s of the Amer ican National Standards Institute, Inc

. , the National Electric al S afety Code, and such other codes and standards that are ge nerally accepted by the industry ]

. ”
CenterPoint contends that these provisions suff iciently regulate the maintenance of elec tri cal e quipment by a utility such that the PUC has exclusive jurisdic tion to determine whether it met the applicable standards. CenterPoint made

a similar argument in In re CenterPoint , whic h involved a question of whether CenterPoint had employed a prope r ly

- size d fuse on electrical lines. 629 S.W.3d at 16 2

. Indeed, in that c as e, CenterPoint cited both section s 25.52(b)(1) and 25.101( d) . A plurality of the supreme court , h owever, expressly rejected these provisions as being too gene ral to supply a sta ndard of care in a negligence case, stating “ regulations generally requiring a party to act safely or reasonably do not substitute a legi slatively imposed standar d of conduct f or the reasonable person standard of common

- law negligence. ” Id . at 163 (citing, e.g. , E ntex, a Div. of Noram Energy Corp. v. Gonzalez , 94 S.W.3d 1, 8

– 9 (Tex

. App.

— Houston [14th Dist.] 2002, pet. denied) ). 6 Although t he In re CenterPoint court did not addr ess section 25.52(b)(4), regarding maintaini ng a trained and exper ienced staff , that
pro visio n likewise appears to o general to provide a standard

. CenterPoint does not cite any other law or regulations as proof that t he PUC specifically regulates the insta ll ation , inspect ion , mainten ance , repair , or replace ment of transformers and

ass ociat ed equip ment. If the PUC does not regulate the issues underlying Coleman ’ s claims pursuant to PURA ’ s pervasive regulat ory s cheme, i t does not have exclusive original juri sdiction to adj udicate C oleman ’ s claims. See id . at 161

-

6 A fifth justice, concu rring in the disp osi ti on, also ag reed t hat the plaintiff in In re CenterPoint had not bro ught “ the kind of claim that the Commission can adjudicate

. ” 629 S.W.3d at 166 (Boyd, J., concurring) ; see also supra n. 4

.21

64

. 7

4 . Conclusion
The PU C doe s n ot ha ve exclusive original jurisdiction over the underlying issues in t his case by express grant or under PURA ’ s pervasive regul atory system. Accordingly, Coleman was not required to ex haust any administrative r emedies and the trial court possessed subj ect matt er jurisdiction over Coleman ’ s claims. We overrule CenterPoint ’ s f

irst issue.
B
. Sufficiency of the Evidence A negligence c laim requires pro of of circumstances gi ving rise to a legal duty owed by the defend ant to the pl aintiff, a br each of tha t dut y, and d amages proximately caused by that breach. Lee Lewis Constr., I nc. v. Harrison , 70 S.W.3d 778, 782 (Tex. 2001) ; Davis

- Lynch, Inc. v. Asgard T echs., LLC , 472 S.W.3d 50, 63 (Tex. App.

— Houston [14th Dist.] 2015 , no pet. )

. I n its second , thi rd, and four th issue s, CenterPoint challenges the suffi ciency of the evi dence to s uppo rt the jury’s findings that CenterPoint breached the appl icable standard o f care and proximately caused Coleman ’ s damages and the amount of damages award ed by the trial court

. W hen e xam ining a legal

- sufficiency challenge, we review the eviden ce in the ligh t most favorable to the challenged finding and indulge ev ery reasonable in ference that would sup port it. City of Keller v. Wilson , 168 S.W.3 d 802, 822 (T ex. 2005). We credit fav orabl e e viden ce if a reasonable factfinder could and

7 It is not entirely clear whether CenterPoi nt int end ed to ar gue t hat the PUC has e xclusive original jurisdiction because resolution of the underlying issues allegedly require interpretation of CenterPoint ’ s PUC

- approved tariff . To the extent that CenterPoint intended to do so, we note that in the p rior appeal, we he ld that the “ G ood Utilit ies Pr actice ” required in the tariff did not impose a ne w or additional standard that was different than the common law duty of care. See Cura

- Cruz , 522 S.W.3d at 571

- 72; se e also In re CenterPoint , 629 S.W.3d at 1 65 ( “ We see no ind ication tha t the Legisla ture i ntended the PUC to resolve issues based on a tarif f where no tariff provisions alter the applicable legal standards. ” ).22

disregard co ntrary evi denc e unless a reasonable fa ctfinder could not. Id . at 827. W hen a party attac ks the legal sufficien cy of an adverse finding on which it did not have the bur den of proof, the party must dem onstr ate on appeal that no evidence supports the finding. Graham Ce nt. Station, Inc. v. Pena , 442 S.W.3d 261, 263 (Tex. 2014) (p er cur iam).

In a factual

- sufficiency ch allenge, we consider and weigh all the evide nce, both sup por ting and contradictin g the fi nding

. Mar. Overseas Corp. v. Ellis , 971 S.W.2d 402, 406

– 07 (Tex. 1 998) . We will set aside a finding for factual insufficiency o nly if it is so c ontrary to the overwhe lming weight of the evidence as to be clearl y wrong and u nju st. Id . at 407. The a mount of evid ence required to affirm is far less than the amount necessary to r everse a judgment. Harris Cty. v. Coats , 607 S.W.3d 359, 381 (Tex. App.

— H ouston [14th Dist.] 20 20 , no pet. )

. As trier of fact, the jury is the sole judg e of witness credibility and m ay accep t or reject all or part of the testimony provided b y any witn ess. See , e.g., Golden Eagle Archery, Inc. v. Jackson , 116 S. W.3d 757, 761 (Te x. 2003)

. This general ly includes testimony provided by experts. S ee Gator Gone Safety Pilots v. Holt , 6 22 S. W.3 d 524 , 537 (Tex. App.

— Houston [14th Dist.] 2021 , no pet. )

. 1
. Breach of Duty
Cen terPoint first challenges the legal and factua l sufficiency of the evidence to suppor t the jury ’ s finding that CenterPoint breach ed a duty of care owed to Coleman

. Cen terPo int gene rally does not differentia te between its legal and factual

s uffici ency arguments. We will begin our analysis by offering a synopsis of Coleman ’ s theory of breach , based primarily on expert McGraw ’ s testimony . We will the n address each of Cente rPoin t ’ s spec ifi c critiques. As discussed in detail above, M cGraw testified tha t the fire was most likely23

caused when an arc flash that originated in or near a compromised HV bushing destroyed the copper ground wire and then ignited d ry vegetation near the base of the utility pole

. Molten copper from the wire and o i l expelled from th e transformer through the broken seal of the bushing also likely contributed to the fire. McGraw
op ined that three safety components failed , caus ing or co ntribut ing to the cause of
t he fire : the HV bushing, an external fuse, and the grou nd wire

. According to McGraw, h ad there not been a dielectric and insulation breakdown of the HV bushing, had the external fuse not failed to clear, or had the ground system been adequate, the fir e never wou ld have started. Moreover, h e s a i d that had the

c omponents been prop erly install ed , inspect ed , maintain ed , repair ed , and replace d, the y would not have failed and , g iven the level of danger involved, CenterPoint ha d a duty of care to properly ins tall, in spect , maintain, repair, and replace those safety co mponents. McGraw fu r ther asserted that CenterPoint had ample warning of a problem and opportunity to fix any issues but failed to do so , thus breaching the duty o f care

. I n support of his conclusi on s , McG raw c ited CenterPoint records and the deposition t estimony of CenterPoi nt ’ s technicians. He also cited the video , which record ed the start of the fire , photographs of the equipment and the burn patterns on the prop erty take n after the fire , and cer tain phy sical evidence including the appearance of the HV bushing , copper wire , and transformer tank after the ev e nt

. The HV bushing was broken and had black ma rks on it from carbon as a result of an arc fl a sh. The copper wire was ripped

- apart, melted, and vapo riz ed . T he transformer tank had bu rn marks and a bubb ling pattern on the i nside , indicating an arc flash had occurr ed

. McGraw opined that in reasonable scientific and engineering certainty, if the three safety components are m aintained in good working cond iti on th rough proper24

inst allation, inspection, mainte nance, repair, and r eplacement, it is more likely than not that they will not fail, and instead will work properly and prevent an event like the one in question from occurri ng

. He specifically fault ed Ce nte rPoin t because its
tec hnicians only visually inspe cted the transformer , HV bushing , and related equipment and did not conduct a Megger test or other diagnostic test to determine the cause of earlier equipment troubles . He i ndicated CenterPoint had a

res pon sibil ity under the circumstances to conduct such t esti ng to make sure there was no leakage current or compromise to ground and not simply replac e a couple of components and restore power

. He said that if you get that many s ervice calls on one piece of e qui pment in a very short period of time

. . . it’ s a pretty good indicati on that that’s a trouble area and you need to investigate and test more to find out why you keep having to go back

. . . because ultim ately at 19 [kilovo lts], if you have a whoop s, it ’s catas trophic.
M cGraw also questioned the a dequ acy of the ground system , the failure of which he said likely caused or contr ibuted to caus ing the fire. He insisted the system should have been installed in a dielectrically co nsistent manner for the

a pplie d v oltag es and had it been “stronger, larger , ” it likely would not have f ailed
t o contain the voltage in this case. McGraw concluded that CenterPoint ’ s failure to maintain its equipment in good working condition through proper installat ion, inspection , mai nte nance , repair, and replacement was a proximate cause of the fire

. The fire marshal investigators concurred that the fire pro bably started when an unspecified electrical anomaly from the electrical distribution system ignit ed dry veg etation at the base of the u tility pole

. Although CenterPoint ’ s exper t, Hautanen, criticized both McGraw and the fire marshal ’ s conclusions, he did not offer a strong alternative hypothesis for how the fire started , suggesting possibilities like burn barre ls and extensio n cor ds that were rejected b y McGraw25

and the investiga tors

. Hautanen also disa greed with McGraw and the investigators ’ interpretation of the video of the fire.
CenterPoint begins its challe nge to the evidence of breach by assertin g that Col eman was requir ed an d f ailed to present ev idence of three predi ca tes: “ (1) the transformer ca used the fire, (2) the transformer ’s components were defective, and (3) CenterPoint negligently maintained the transformer. ” We will interpret CenterPoint ’ s argume nt as including equi pme nt re lated to the tran sformer as discussed by McGraw in his testimony.
Did t he transformer cause the f ire ? Regarding the first alleged predicate, that the transformer or related equipment caused the fire, McGraw cited signi ficant evidence indicatin g an arc fl as h that originated in or near the HV bushi ng

— and then escaped the trans former through the ruptured bushing and destroyed the copper ground wire

—

produced sparks that ignited dry vegetation at the base of the
ut ility pole

. According to McGraw, m o lten cop per f rom the wire and oil expelled from the tr ansformer also contribut ed to the fire

. Th e cited evidence included video and photographic evidence as well as the phy sical evidence discussed above , including the broken HV bus hing , the ripped

- apart, m elted , a nd va porized c opper ground wire , and the burn marks and bubbling patte rn inside the transformer tank

. The fire marshal investigato rs generally concurred that the fire started as the result of “ an unspecified electrical anom aly from the elect rical d istri but ion s ystem , ” and they specifically noted the d estroyed copper wire.
Ce nterPoint , however, argues th at there was conclusive evidence that a ground fault from in or near the tran sformer could not have started the fire because the security camera cont inued to oper ate for 30 minutes after the fire began

. CenterPoint insi sts tha t a fault powerful enough to cause the HV bushing to r upture would have immediately cut off power to the camera

. In support, CenterPoint cites26

the deposit ion t estimony of William Rhode s, who w as initially hired by Coleman
as an exper t in the case. Rhodes no ted that the transformer could not have suffered

a “ catastrophic failure ” because the camera kept working. I n the excerpt provided, however, Rhodes did n ot s ay that an electrical faul t d id no t occur, just that it was
not “ catastroph ic

. ” He did not define w hat he meant by “ catastrophic ” in this
context. CenterPoint additionally notes that its own expert, Hautanen, disagr eed with McGraw that the co ndition of the transformer after th e fir e i ndica ted an electrical fault or arc flash had occurred within it , but of course, th e jury was free to accept McGraw ’ s conclusion over that of Hautanen

. See Golden Eagle Archery , 116 S.W.3d at 761 ; Gator Gone Safety Pilots , 622 S.W.3d at 537

. The ju ry wa s

a lso a ble to see for themselves the photographs of the transf o r mer as a n aid for determining which expert was more credible.
CenterPoint next points out that Hautanen and its technicians testified th at fuses clear almost instan t aneously in response to f aults an d the y had never heard of a fuse taking so lon g to clear. The se wi tnesses did not testify, however, that i t was impossible for a fu s e to fail to clear in response to a ground fault. McGraw explained that the fuses could hav e simply delayed in clear ing d ue t o th e amount of current involved , saying “ in the case of a high r esistance ground/flashover, it would have taken a little bit of time for that fuse to actually clear

. ” CenterPoint criticizes McGraw for not offering “ detail ed suppo rt ” for this obse rvati o n and f or not exp laining how the fault could hav e been powerful enou gh to rupture the HV bushing and expel oil fro m the transformer but not clear the fuse. CenterPoint also
asserts , without citing any evidence, that the fault ’ s impac t should have dim inish ed

over time and not increased after 30 minutes t o clear the fuse. Mc Graw indeed acknowledged that he could not “ definitively state . . . the exact reason ” why the camera continued to receive power , but s uch admission is not f atal to hi s27

testimony. It see m s a ppare nt that McGraw concluded that there was n ot enough informatio n to know exactly why the fuse did not clear for 30 minutes and yet there was enough information, as he described in detail , to conclude that an arc flash or iginating i n or near the HV bu shi ng ca used the fire. The fire marshal investiga tors generally concu rred. Th e jury was free to accept McGraw ’ s testimony and the investigator s ’ conclusions over that of the CenterPoint witnesses , and we presume that the y did so. See Golden Eagle Arc h ery , 116 S.W. 3d at 761 ; Gator Gone Safety Pilots , 622 S.W.3d at 537

. Cente rPoint additionally notes that Hautanen testified the oil in the transformer would have burned off if there had been a fault, but again, the jury was fr ee to discount his testi m ony a nd accep t McGraw ’ s that the physical evidence
sup ported the conclusion tha t a fault had occurred in the transformer. Also, again, the jury was able to view the photographs of the equipment for themselves as an aid for assessin g credibility

. The eviden ce wa s l egall y and factually sufficient to establish th at Center Point ’ s equipme nt caused the fire on Coleman ’ s pro perty.
Was there a defect in the transformer ’s components ? CenterPoint next argues th at even if evidence supported t he conclusion that a faul t occ urr ed , t here was no evidence or in suffic ient evidence that the transformer or related equipment

w as defective

. CenterPoint insists that C oleman needed and failed to detail exactly how the components were physically or mechanic ally defective or inadequ ate a nd wheth er each such defect or inadequacy existed at a point when CenterPo int could and should have discovered it. As described by McGraw and others at trial, a key function of the electrical system and the equipment at issue in this case is the conta inmen t o f ele ctric current from the utility grid . The significant evidence that an arc flash occurred in or near the HV bushing, the transformer and th e ground system failed to conta in the28

ground fault, and the fuse failed to cl ear is evidence that the equ ipmen t d id no t perform its intended function. McGraw explained that if such equ ipment is properly installed, inspected, maintained, repaired, and replaced, it would not have failed , the current would have been contained, and the fi re would not have started

. McG raw also noted how each component failed

— t here was an arc flash in or near the HV bushing, which also ruptured and broke the seal on the transformer; the fuse failed to clear; a nd the copper ground wire ripped apart, melted, a nd vaporized when exposed to v olt age

. McGraw explained that the ground system as desig n ed and installed was inadequate for the voltage and should have been stronger and larger. While he otherwise did not specify what physical or mechanical defect existe d in the other components th at fa ile d to perform their functions, this makes sense in light of his insisten ce that given the rep eat problems, diagnostic testin g was necessary before a catastrophic event coul d occur

. CenterPoint does not cite to any evidenc e that specific mechanical o r phy sic al de fects could have been determined after the fire, the components ha ving been damaged by both their failures and the fire.
CenterPoint cites two cases in support of the proposition that it cannot be assumed the transf

ormer was defective merely b ecaus e a f ire occurred : Systech Fin ancial Corp. v. Vaughn , 558 S.W.2d 105, 105 (Tex. Civ. App.

— Tyler, 1977) , and John R. Francis B ui ld in g. Co. v. Bob Meador Co. , 517 S.W.2d 693 ( Tex. Civ. App.

— Houston [14th Dist.] 1974 , no writ )

. In both of these c ases, ho wever , t he

co urts emphasized that there was no evidence establishing the cause of the fire s and instead the plaintiff s relied on a stacking of inferences in attempting to prove the defendant s ’ negligen ce

. Systech Fin

. , 558 S.W.2 d at 105 (affirming direct ed verd i ct w her e jury appar ently concluded defendant started f ire in his apartmen t because he was a smoker) ; J o h n R

. Francis B ld

g. , 517 S.W.2d at 695 ( holding that29

although negligence could be proven by circumstantial ev idence, me re surmise or suspicion of n eglig e nc e and a stacking of i nferences was imperm issible) . In th e present case , as discussed in detail above , there was significant evidence , including
exper t , video , and physical evidence, that the fire was started due to a fai lure of CenterPoint ’ s equipm ent t o p ro per ly function as a resu lt of CenterPoint ’ s failure to properly insta ll , inspect , maintain , repair , and replace that equipment. The cited

cases are inapposite.
CenterPoint additionally argues that it presented conclusive evide nce that the equipme nt wa s n ot de fecti ve at the time of the fire because during the September 8, 20 10 servi ce call s , technicians replaced a couple of fuses and visually insp ected some of the components. In relation to this assertion , CenterPoint emphasizes a portion of McGraw ’ s te sti mony where he denied that he was asserting the HV bushing had a defect that tec hnicians could have v isually observed

. CenterPoint also points out that McGraw admitted the transformer ’ s core and coil remained functional even afte r the fire

. The se ar gumen t s , howe ver, ignore a key component of McGraw ’ s testimony

—

that CenterPoint breach e d the duty of care , at least in part , because it s technicians only performed a “ cur sory visual inspection ” and failed to diagnostically test the trans former and HV bush ing

. Acc ordin g to Mc Graw, visual inspection was insufficient under the circumsta nc es to discover the cause of the repeat problems , and without determining the cause of the problems, CenterPoint could not know how to remedy th e issues

. McG raw opined that s i mply rep la cin g a

cou ple of components and then placing the equipment back into s ervice was not sufficient under the circumstances a nd violated the standard of care. He explained that in order to determine the root problem or problems , CenterPoint needed to cond uct diag nostic testing, such as Megger te sting, and without such testing,30

C enterPoint would not know what to do to prevent further issues with the equipment and a potentially catastrophic “ whoops. ”
CenterPoint ’ s point about the core and coil remaining func tio nal i s irrel evant because McGraw acknowledged t his in his testimony . He instead identified the HV bushing

— the entry point for high voltage electricity from the electrical distribution system into the tran sformer

— as the component tha t initiall y fail ed to co ntain the

cur r ent

. McGraw explained that there was “ more tha n enough

. . . evidence that there was a ground fa ult or a flashover on the top side of the transformer in and around the high voltage bushing ” so that a flashover occu rred without
comprom ising th e ins ide of th e transformer

. He further detailed that evidence and descr ibed at lengt h how he was able to eliminate other potential causes of the fire such as the extension cords on the property

. In short, McGraw ’ s testimony and the evidence he cit ed in su pport was suff icient evidence that CenterPoint ’ s equipment

was defect ive or inadequa te at a point when CenterPoint could and should have discovered it

. D id CenterPoint negligently maintain the transformer ? CenterPoint next challenge s the s ufficienc y of the evid ence to p rove that it neglige ntly maintained
t he transformer. A s it d id in its jurisdictional arguments discussed above, CenterPoint begins t his section of its brief by again misconstru ing Coleman ’ s theor ies as assertin g CenterPoint neg ligentl y fai led to ( 1) adopt a formal , proactive maintenanc e program for it s transforme rs and (2) provide all of its service technicians with Megger devices and mandate the regu lar use of such devices in maintaining its transformers. A nd a g ain, CenterPoint does no t cit e to wher e Coleman alleged either of these things. As set forth in detail above, McGraw essentially testified that CenterPoi nt negligent ly design ed and install ed a ground system that was inadequate for the v oltage involved and fail ed to c onduct31

di agn ostic testing in response to repeat p roblems with the same equipment so that it could determine and correct the cause of those problems

. To the extent relevant to Coleman ’ s actual the ories, we will address the r est of CenterPoint ’ s ar gum ents.
CenterPoint notes that its technicians visually ins p ected the transformer during the power ou tage about five weeks before the fire and asserts they electrically test ed the transformer when they restored power. As discussed above, however, McGr aw e xpl ained that a visual ins pection was inadequate under the circumstances, and CenterPoint does not cit e any evidence that simply closi ng the fuse and restoring power would provide the same information regarding potential leakage currents o r compro mise to g round as would a Megger test or a “high potential test” of the transformer and HV bushing . McGraw expl icitly dis agreed that simply restoring power met the standard o f care. CenterPoint also points out that the technicians trimmed nearby tr ee s to e limin ate one possible cause of t he earlier power outage, but again, McGraw ’ s testimony clearly indicated th is w as insufficient given the rep ea t problems th e transformer had experienced.
Next, CenterPoint asks why they would have need ed to determine t he sou rce

o f th e ground fault that cau sed the prior power outage when Coleman ’ s theory of how the fire began concerns a failure of the system to contain an arc flash. CenterPoint does not support this argument with further explanation or citation to the re cord. The c lear implication of McGraw ’ s testimony wa s that to meet the standard of care, CenterPoint needed to have d i agnostically tested the transformer and HV bushing to en sure there was no lea kage current or compromise to ground

. He explained that fai lu re to do so and to determine and corre ct the cause of the repeat problems most like ly resulted in the fire. He additi onally questioned the adequacy of the ground system , which he also identified as a cause of the fire.
CenterPoint argues bo th that McGra w failed to expre ssly state CenterPoint32

breached the standard of care by failing to conduct Megg er testing and that he did so but failed to explain why it was necessary. To be clear, McGraw explained that diagnostic testing was required to mee t t he st andar d of care in orde r to determ ine and correct the cause of the repeat problems with the equip ment and prevent a catastrop hic “ whoops ” as occurred in this case. CenterPoint further notes McGraw

a dmitted he was unaware of any utility that mandated re gular Megg er testing of its transforme rs . But McGraw did not ass e rt CenterPoint was negligent for failing to regularly Megger tes t transformers , he fau lted CenterPoint for failing to conduct diagnostic testing of the equipment under the circumstances of th is ca se.
L astly, CenterPoin t cites Sim mons v. Briggs Equip ment Tr ust , 221 S.W.3d 109 (Tex. App.

— Houston [1st Dist.] 2006, no pet. ) , for the undisputed proposition that the me re occurrence of a fire does not give rise to a presumption of negligence

. A fte r t he pl ainti ff in Simmons was injured wh en a fire occurred in the engine compartment of a rail car mover that he was operating , he sued the company that was under contract to provide mainten ance on the engine

. Id . at 111. In affirm ing a no

- evid ence summar y j udgme nt fa v oring the defend ant , the co urt of appeals explained that the mere fact that a ruptured hose was found in the engine

co mpartment after the fire only created a surmise or suspicion of negligence and the plaintiff needed and failed to present ex per t tes tim on y regarding the c ondition

o f the hose , whether the maintenance company had violated the standard of care , and what a re asonable maintenance company would have done under the circumstances. Id . at 115 . Here, as discussed in detail above, Colema n p resen ted

e xpert testimony r egarding th e transformer and other equipment, that CenterPoint violated the standard of care , and that a reasonable utility company would have performed diagnostic testing on the e quipment in response to the repeat problems

an d w ould have installed a n adeq uate ground grid in a dielectrically consistent33

manner for the applied voltages. Nothing i n Simmons su ggests the evidence in the present case was legally or factually insufficient.
CenterPoint has failed to establish that the ev idenc e was legal ly or factu al ly in suff icien t to support the jury’s finding that CenterPoint breached a duty of care owed to Colem an. Accordingly, we overrule CenterPoint ’ s second issue.
2. Proximate Cause
In its third is s ue, CenterPoint challenges the leg al an d fac tual sufficiency of the evid ence t o establish t hat CenterPoint ’s negligence proximately caused the f ire. To establish p roximate cause, Coleman was required to establish both cause

- in

- fact and foreseeability

. See Lee Lewis Constr., Inc. v. Harr ison , 7 0 S.W. 3d 778, 78 4 (Tex. 2001)

. A plain tiff proves cause

- in

- fact by showing that the all e ged act or omission was a substantial factor in causing the injury without which the harm would not h ave occurred. Id . Foreseeability means that the defendant sh ou ld hav e
ant icipated the dang er that t he alleged negligent act or omission created for others. Id . at 785

. 8 Here again, CenterPoint misconstrues Coleman ’ s theory of liability and asserts that Coleman failed to offer evidence that a failure to (1) adopt a f ormal,
proac tive mainten ance program f or its transformers an d (2) provide all of its service technicians with Megger devices and ma ndate the regular use of such devices in maintaining its transformers caused the fire and result ing damages

. We will a gain ad dress CenterPoint ’ s sp ecific ar guments to the extent relevant to

8 The jury charge , which governs our analysis o f the evidence, defined “ p roximate cause” as meaning

a caus e that w as a substantial facto r in bringing about an event, and without which
ca use such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be s uch that an entity using ordinary care
wo uld have fores een that the ev en t, or some simila r event, might reasonably result therefrom. There may be more than one proximate cause of an event.34

Coleman ’ s actual theory.
CenterPoint asserts that for evidence of cause

- in

- fact , Coleman relied exclusively on c onclusory statement s by McGraw that properly maintaining the transforme r in som e uns pecified manner w ith some unspecified frequency would have prevented the f

ire

. In support, CenterPoint cites to some of McGraw ’ s more general statements, for example , that had C enterPoint properly install ed , inspect ed , maint ained , repair ed , an d replac e d it s equipment, the eq uipment most likely would not have failed, an d the fire would not have started. CenterPoint al so cites to c ases in which court s held that expert testimony was insufficient ly specific to establish

caus e

- i n

- fact

. See Excel Corp. v. Apoda ca , 8 1 S.W.3d 817, 821

– 22 (Tex . 2002) ; Oncor Elec. Delivery Co., LLC v. S. Foods Grp., LLC , 444 S.W.3d 699, 7 12

– 13 (Tex. App.

—

Da llas 2014 , no pet. ) ; Goss v. Kellogg Brown & Root Inc. , 232 S.W.3d 816, 819

– 20 (Tex. App.

— Houston [14th Dist.] 2007 , pet . denied )

. Th ese cases are dis tinguish able, however, beca use here , McGraw did not just make the generalized statements regarding causati on that CenterPoint cites but also offered specific explanations of how CenterPoint ’ s failures were a sub stantial factor in

caus ing t he fire an d how t he fire most likely would not have occurred if CenterPoint had met the standard of care.
As discussed in more detail above, McGraw testified as to why and how CenterPoint needed to diagnostically test the trans former and HV b u shing f or le a k age curr ent or compromise to ground rather than just replacing a few components and putting the transfo rmer back into ser vice in response to repeated problems with the equipment. He indicated that doing so would have determine d the cause of the grou nd fa ult and in formed CenterPoint what needed to be done to remedy the issue . In regard to the ground system, he explained that it should have been designed and installed in a dielectrically consistent manner for the voltages35

applie d and should ha ve been la rge r and s tr o nger th an it was and had it been so, the current would have been contained and the fire woul d not have occurred.

E vidence McGraw cited in support of his conclusions included the fire marshal investigator s ’ report that large ly supported hi s det ermination as to the cause of the fire, the remains of the destroyed copper g round wire, the broken HV bushing , the black carbo n markings on the inside of the bus h ing and the transformer tank , the fact that two gallons of oil wer e expelled fro m the
tr ansfo rmer, the b ubblin g pattern on t he inside of the transformer tank, the video of the start of the fire, and the testimony of Cent erPoint ’ s technicians who stated that they only performed a cursory visual inspection of the equipment , traded out a couple of co mponents , a nd tri mmed some trees in response to the ground fault and power outage five weeks before the fire but did not diagno stically test the equipment because they did not have the tools to do so.
CenterPoint ’ s expert, Hautan en, asserted t he coppe r wir e simply me lted f rom the heat of the fire and the fire may have been caused by extension cords, but both of these conclusions w ere rejected by McGraw and the investigators based on the physic al remains of the wir e , the fact the fire would not have got ten h ot eno ugh to melt copper, and the fact that the extension cord breakers had not cle ared. Although McGraw could have provided mo re details and specificity to help the jury ’ s analysis, his testimony and supporting evidence was sufficient evide nc e of

cau se

- in

- fact.
CenterPoin t additionally points t o a couple of i solate d references in McGraw ’ s testimony that it argues renders the evid ence on causation insufficient. The first comment came during the direct examination of McGraw wh en he was asked wha t would have been r equired “ to keep th at transformer in g ood working condition and prevent a fire ” and McGraw began his response by saying, “ I can't36

speak to preventing the fire

. . . . ” Exactly what McGraw meant by that phrase is unclea r, but shortly afte r this r emark , McGr aw directly indicated that had CenterPoint not breached the standard of care, the fire would not have occurred. As sole j udge of the weight and credibility of the testimony, t he jury was free to accept McGraw ’ s clear , direct statements a nd disco unt t h is on e unclear p hrase. See Golden Eagle Archery , 116 S.W.3d at 761 ; Gator Gone Safety Pilots , 622 S.W.3d
at 537

. The second Mc Graw comment also came during his direct examination when he acknowledged that “ [e] verything fails. Everything ul timately fails. You and I w ill b oth fa il, right? ” Again, it is not entirely clear what relevance the off

hand remark has to t he evidence of cau sation, and CenterPoint does not offer an analysis. McGraw certainly did not and was not required to testify that the equipment coul d not po ssibl y have failed if maintained in proper condition. He testified instead that had CenterPoint properly install ed , inspect ed , maint ained , repair ed , and replace d its equipment, the eq uipment most likely would not have failed, an d the fire would not have st arted

. The jury was fr ee to dis regard the remark. The evidence was legally and factually sufficient to support the j ury ’ s finding that CenterPoint ’ s negligence was the proximate cause of Coleman ’ s damages. We overrule CenterPoint ’ s third issue.

3. Lo st Pr ofits Damag es
In its f ourth issue, CenterPoint contends that Coleman failed to present factually sufficient evidence to support the award of lost profits damages, even as reduced by remittitur. Alternati vely, CenterPoint contends the award was

exce ssive. A s dis cussed above, the jury found lost profits damages in the amount of $3,633,917 , but the trial judge subsequently reduced this to $2,763,435

. Under37

this issue, CenterPoint seeks a new trial on both liability and damages

. We will begin by ex amini ng the l aw an d evid ence relate d to lost pr ofits and then will turn
to CenterPoint ’ s specific arguments.
G overning law. Both sides agree that t o recover lost profits damag es, Coleman was required to prove both the fact and amount of the loss by competent

ev idence w ith r easona ble certain ty. See Hori zon Health Corp. v. Acadia Healthcare Co., Inc. , 520 S.W.3d 848, 859 (Tex. 2017)

. Although evidence sufficient to allow an exact calculation of lost profits is not required, lost profits estimates must b e based on objectiv e fac ts , figures, or d ata from which the lost profits may be ascertained. Id . Lost profits damages , however, may not be based on evidence that is speculative, uncertain, contingent, or h ypothetical. See Szczepanik v. First S. Trust Co. , 883 S.W.2d 648, 649 (Tex

. 1994) ; Carter v . Stever son & Co. , 106 S.W.3d 161, 165 (Tex. App.

— Houston [14th Dist.] 2003 , pet. denied )

. Whe n evidence of damages is determined to be factually but not legally insufficient, a remit tit ur or a new trial may be in order, depen ding on the s ta te of the evide nce. See ERI Consulting Engineers, Inc. v. Swinnea , 318 S.W.3d 867, 880 (Tex. 2010)

. The evide nce. T o prove lost profits , Coleman offered testimony from himself, his wife, and his employees ; tax returns and fi nancial stat ement s ; and t he
te sti mony of expert James Claywell, a CPA who special izes in business valuations and lost profits calculations. C oleman and other witnesses described the devastating effect the fire had on his car uph olstery business. The re was significant evide nce that the business lost established wholesale clients and saw a dramatic and sustained loss of retail customers as a re su lt o f the fi re . Prior to the fire, Coleman ha d plans to expand his business by developing another property to accommodate more busi ness, an d he had begun to put those plans into action, having purch as ed a lot and ha d building plans drawn up . After the fire , those pl ans38

were put on hold and Coleman struggled to obtain and pay for services related to the development, including asph alt, plumbing , ele ctr i c ity, and bui lding a permanent structure . Coleman and his wife testified tha t the business was disrupted for several years due to the fire and that the development of the other property took several years l onger than planned. Clayw ell testified regar ding his qualifications and his investigation into Coleman ’ s business, including review ing tax returns and financi al statements, corporate documents, marketing, and a narrative provided by Cole man and his wife. To project what would h ave h appened had there been no fire, Claywell used

“ regression analysis, ” which he described a s a statistical analysis that looks at pas t performance to project future expected per formance. He said that accor ding to t he Colemans ’ narrative, they we re “ pret ty mu ch ” completely ou t of the business for two years, but Claywell said they subsequently discussed the business lag may instead have b een three years or as long as six years. Cla ywell explained that he d id not personally asses s the length of busi ness lag and it was an issue f or company management to decide and ultimately the jury. He noted , however, that two years after the fire , a forec losure and other difficulties were ongo ing , suggesting the lag was greater than two years.
C laywell identified i mportant fact ors affecting his analysis , which included that the company ’ s growth rate from 2007 until 2010 exceeded 31 percent annually ; given the growth rate and proper ty a vailable as collateral, C oleman could have expect ed to qualify for a small busines s loan t o beg in develop ing the new property in 2011 ; and it took until 2018 before they were finally able to open the new building

. Claywell cal cul ated that if the business suffered a two

- year busine ss lag, the lost profits would total $1,680,013 and if t he busin ess s uffered a three

- y ear lag, the lost profits would be $2,763,435

. He said that he did not specifically39

calculate los t profits damages for a six

- year lag , but he believed he had given the ju ry enough information for that amoun t to be calculated. Claywell crit icized the analys is by CenterPoint ’ s expert, Jeffrey Compton , because Compton failed to take the seasonality of the business into ac count ; did not do “ back transformations , ” which Claywell identified as a crit ical step in making lost profit ca lculatio ns as accurate as poss ible; and did not consider “ step ” or se mi

- variable costs

. On cross

- examin ation, Claywell acknowledged that as time goes by , it becomes more difficult to pin losses on a specific event. When pre ssed regarding wha t business lag estimate was more reliable , Cl aywell testified that he would rely on the two

- year bus iness lag because that was the estima te in the Coleman ’ s wri tten narrative and the period that they had originally thought it would be.
CenterPoint ’ s financial ex pert, Com pton, ca lcula ted lost profits damages based on a four

- year business lag. He testified that he used tw o different methods of calculations and came up with tot a l damages of between $240,000 and $300,000.
CenterPoint ’ s arguments. CenterPoint fir st ho nes in on Claywel l ’ s

s tatement that he thought the two

- year lag was the most su pportable because it was the period that the Coleman ’ s had originally propo sed in their written narrative

. CenterPoint suggests that this comment rendered the evidence factually insuffic ient
to suppo rt the tr ial cour t ’ s award of $2,763,435 , which according to Cla ywell, was the estimated lost profit damages for a three

- year lag. C enterPoint interprets Claywell ’ s testimony as indicating he could not accept a three

- year lag in keepi ng with f air acco untin g pr actices. But that is not what C la ywell said ; while he suggested he found the two

- year lag more reliable, he did not say that the three

year period was unacceptable or unreliable. Indeed, Cla ywell insisted he did not personally ana ly ze the length o f the business lag and th at it was an issue for40

company management and ultimately the jury. He also noted that a foreclosure and other on going difficulties suggested the lag was greater than two years. Although Claywell based his comment r egarding the two

- year lag being more re liable on the fact it was the period in the Coleman s ’ narrative, he also said that in later discussions, the Colem a ns indicated the lag also could h av e been three years or as long as six years

. As mentioned above, CenterPoint ’ s expert found t he bu siness lag to be four years and Coleman himself testified the business was disrupted for up to eigh t years

. CenterPoint offe rs no analysis of that testimony

. Neither the jury nor the court on remittitur was required to accept Claywell ’ s sugges ti on tha t the two

- yea r lag was more reliable

. C laywell himself said that he did not analy ze the length of business lag , and Coleman offer ed other evidence supporting a determination on the period of disruption

. A jury is generally free to accept or rejec t a ll or an y por tion of an expert ’ s tes timony

. Gator Gone Safety Pilots , 622 S.W.3d at 537 ; s ee also McGailliard v. Kuhlmann , 722 S.W.2d 69 4, 697 (Tex. 1986) ( explaining a jury has c onsiderabl e discre tion in evaluating opinion te stim ony from an expert on the amount o f d am ages)

. 9

CenterPoi nt nex t argues t hat Coleman ’ s tax returns and financial records do not support Claywell ’ s lost profits con clusions. For example, CenterPoint notes that Coleman ’ s income tax returns for the three full years before t he year of t he fire (2007 , 2008, 2009) rep orted “total income” of $299,568, $362,634, and $411,239. CenterPoint, however, does not offer any mathema tical or other explanation as to how these figures defy Claywell ’ s pr o jections. The fire occurred toward the end of

9 CenterPoint cites Holland v. Hayden , 901 S.W.2d 763, 766 (Tex. App.

– Houston [14th Dist.] 1995, writ denied ) , f or the proposi tion tha t l os t profit s damages cannot be based on the subjective and conclusory testimony of the plaintiff alone. This prop osition , however, has no application in the present case where Coleman ’ s lost profits damages evidence included sub stantial financial d ocumen tat io n, expert testimo ny, testimony from Co leman ’ s wife and employees, i n addition to testimony from Coleman himself.41

2010

. Both C la ywe ll and Coleman as serted the business had a n annual growth rate exceeding 31 percent . Applying that rate to the 2009 total i ncome and project ing forward for the years 2010 through 2 013 actually supports rather than contradicts Claywell ’ s pr ojec tions fo r the three years afte r the fire.
Lastl y, CenterPoint notes that it s expert calculated tot a l lost profits of between $240,000 an d $300,000 . But, of course, the jury was free to accept C la ywell ’ s testimony ov er that of Compton. See Golden Eagle Arch ery , 116 S.W. 3d at 761 ; Gator Gone Safety Pilot s , 622 S.W.3d at 537

. The evidence was factually sufficient to support the trial court ’ s award of $2,763,435 in lost profits damages. We overr ule CenterPoint ’ s fourth issue.

C. Damage to Personal and Business Credit

I n its fifth issue, Cen terPoint cont ends that t he trial court erred in overruling its relevance objection to certain evidence off ered by Coleman to prove past and future damages to personal and business credit. CenterPoint does not seek a new trial under th is is sue but , in stead , argues that beca use this evidence was inadmissible and was the only evidence Colem an presented in support of these damages , the damages award should be reversed and a take nothing judgment entered . Th e jury found and the tria l court award ed $450,00 0 for p ast and $50,000 f or future damage to personal and business c redit.
The evidence CenterPoint cites is Cole man ’ s testimony regarding a house that he owned that was foreclosed on and a boat that was apparently repossessed. Co lem an , however, cit es in his brief a host of othe r evidence that was offered to prove damages to personal and busin ess credit , including , a mong other things, evidence that Colema n ’ s credit score fell from the high 700s before the fire in to the 400s afterward s ; Colem an ha d purchased a lot , had building plans drawn up, and42

expected to qualify for a small business lo an before the fire but after the fire , it was years later that his wife w as able to get a loan to finance the new location ; and Coleman had to “ max out ” his credit car ds aft er the fire , was unable to pay the debt, and was sued by American Express

. Even in its repl y brief , CenterPoint does not address this other evidence

exce pt to assert that damage to a person ’ s credit rating i s not recoverable as d amage to pers onal and business credit . We de cli ne to construct CenterPoint ’ s argument regarding th e other evidenc e for it

. See Tex. R. App . P. 38.1(i); Bhatia v. Woodlands N. Houston Heart Ctr., PLLC , 396 S.W.3d 658, 666 (Tex. App.

— Houston [14th Dist.] 201 3, pet. denie d). We overrule t he fift h issue.
II. C oleman ’ s Appeal In a single issue in his a ppeal, Coleman asserts t hat the trial court erred in remitting a portion of the damages found by the jury

. As stated , the jury found lost profits damages in the amount of $3,6 33,91 7 , but the trial judge subsequentl y reduced this amount to $2,763,435

. We review a trial court ’ s order of remittitur under a factual sufficiency standard. See Larson v. Cactus Util. Co. , 730 S.W.2d 640, 641 (Tex. 1987) ; Carlton Energy Grp., LL C v. Phi llips , 535 S.W.3d 542, 552

– 53 (Tex. App

. — Houston [1st Dist.] 2016 , pet. denied )

. Coleman begins his argument by offering boilerpl ate law on lost prof its damages

— which we discuss above under CenterPoint ’ s fourth issue

— and then listing alleged facts support ed by a few citations to large , undiffe renti ated bl ocks of testimony. The listed facts include much of that already discussed abov e regarding lost prof its, includ ing expert Cla ywell ’ s testimony that his job was to provide information from which the jury co uld t hen calculate dam ages, the annual growth rate for the business before the fire was over 31 percent, and Coleman expect ed to

r eceive a business loan before the fire

. Claywell provided specific lost profits43

estimates based on two

- and thre e

- year business l ags (respectively , $1,680,013 and $2,763,435 ) but asserted he prov ided enough information for the jury to calculate lost profit s for six years if necessary . Coleman asserts CenterPoint ’ s expert testified a four

- year lag was ac curate a nd Co leman and his wif e testif ied in support

o f business disruption lasting as l ong as eight years. Coleman particularly emphasiz es his own testimony regarding his credit score, plans, lost business after the fire, and length of time it took to dev elop the new property.
After r ecounting the alleged facts in his brief , Coleman as serts that based on the evidence, the jury could have reasonably concluded there was a two

- , three

- , four

- , five

- , or six

- year business lag . He then speculates that the jury found

“ a pprox imately 4 years ” of business disruption and suggests the jury extrapo lated the lost profits figure i t found from Claywell ’ s two and four

- year ca lculations

a long with the financial records. Instead of offering any actual calculations in suppor t of t hi s spe culation, however , Coleman simply reports that this is what members o f the jury said they did after the trial. Coleman does not offer any proof of this claim. Even if we were able to accept this claim regarding the jury ’ s rational e without pro of, it d oes n ot constitute evi dence supporting the amount of lost profit s damages found by the jury. As discussed above, lost profits damages must be proven by competent evidence with reasonable certainty. See Hori zon Health Corp. , 520 S.W.3d at 859

. Moreo ver, a p arty seeking lost prof it s damages must demonstrate one complete calculatio n of lost profits. See ERI Consulting Engineers , 318 S.W.3d at 878 ; Univ. G en. Hosp., LP v. Prexus Health Consultants, LLC , 403 S.W.3d 547, 551 (Tex. App.

— Houston [14th Dist. ] 2013 , no pe t. )

. And t hat cal culation must be based on net profits, not gross rev enue or gross profits. Univ. Gen. Hosp. , 403 S.W.3d at 551

. Other than sugg estin g the jury could have done it, Coleman does not attempt44

to show how the jury derived its figur es with actua l calculations. See Holt Atherton Indus., Inc. v. Heine , 835 S.W.2d 80, 84

– 85 (Tex. 1992) ( holding evidence was insufficient because it did not provide indication of how plaintiff determined lost
p rofit s damages ).
C ol eman has failed to establ ish th at the trial cour t erred in ordering a remittitur of l ost profits damages. A ccordingly, we overru le his sole cross

- issue.
Conclusion Having overruled al l issues raised in CenterPoint ’ s appe al and Coleman ’ s

cross

- appeal, w e affirm the trial cour t ’ s ju dgme nt.

/s/ Frances Bourliot J ustice

Panel consists of Justices Wise, Jewell, and Bourliot

.