*3 forceplaced testified insurance that HARDBERGER, Before PHIL Chief 1993, February account in December of Justice, RICKHOFF, Justice, TOM ALMA and December of 1995. The addi- LÓPEZ, L. Justice. premiums unpaid tional insurance that went arrearage the Garcias caused an to accrue HARDBERGER, PHIL Chief Justice. Although in the Garcias’ account. the ac- (“Green Tree”)' history count Green Financial reflected that the Garcias’ ac- Corp. Tree charged premiums count appeals for the force- judgment appellees, a in favor insurance, (“Garci- placed Green Tree unable to Feliciano and Garcia Garcia produce as”), any documentation to show that the in an action for and defamation viola- actually insurance purchased. had been tions of the Texas Debt Act Collection and addition, the Garcias introduced evidence Deceptive the Texas Trade Practices —Con- they coverage during had (“DTPA”). insurance at sumer Protection Act part period least Green Tree contend- $34,562.28 awarded in the Garcias actual coverage lapsed. ed that insurance had $2,250,000in punitive damages, and finding that Tree acted with malice. Green Notices of default and intent to accelerate brief, Green Tree raises five in its issues September letters were sent Garcias (1) contending: Garcias are entitled 1995, January December of punitive damages to recover because and March of 1996. Feliciano Garcia testi- finding supporting any failed legal to obtain Valdez, Mary fied that Lou upon basis which such can be im- collector, calling began Decem- his home (2) posed against corporation; the evidence ber of and 1995 and call three four legally factually is and insufficient day. Despite inquiries times a into the na- (3) jury’s finding malice; arrearage protestations ture of the and damage award is excessive and constitution- made, monthly all payments were the Garci- (4) ally infirm; legally and evidence provide as testified that Green Tree failed to factually and insufficient explanation them with an the arrear- how $30,000 damage award of to charac- age had notice that insurance accrued reputation. ter and We conclude that forceplaced property. had been on their Fel- refusing trial during court abused its discretion iciano Garcia these con- testified instruction, necessary versations, “stupid.” submit a and we re- Valdez called his wife speak requested verse the trial court’s remand When Feliciano Val- Tarte, supervisor, cause to the trial court for new trial. dez’s Michael Feliciano copy during dis- produced contract and the testified that Tarte’s first statement was: had as- going your covery Feliciano fur- the contract been “I’m to sue ass.” After complained party. that Tarte that he Tree to a third signed by ther testified me, non-suit, realigned, “you people paying parties was tired of trying get paying Tarte was out of me.” claims proceeded the trial manager in at the the collections San Antonio against Tree. making dispute. Tarte
time denied granted verdict trial court directed using profanity such statements or ever usury inten- on their the Garcias handling complaints. customer addi- claims. tional infliction of emotional distress home, tion to the calls made to the Garcias’ of the Debt The claims to violations supervisor Feliciano’s was contacted Act DTPA were submitted Collection at that Felici- Green Tree work and was told *4 in the jury, and a verdict was rendered mortgage payments. on his ano was behind The trial court denied Green Garcias’ favor. supervisor relayed Feliciano testified that his motions, Tree post-verdict and Green Tree’s information to him in front of other this timely brought appeal. this employees, telling him to care of his take problems. Exemplary Damage Predicate CORPORATE reported Green Tree also the Garcias’ al- leged delinquency to credit a bureau. As Punitive can be awarded result, Sylvia in her corporation was denied credit effort an against a based on an act of (1) purchase sewing supplement a machine to employee corporation if: autho (2) addition, Sylvia act; the Garcias’ income. In was doing or rized the and manner co-sign that she could not a loan for corporation informed and employee was unfit (3) him; produced her son until she a from her employing letter or was reckless attorney stating managerial that the account was in dis- in a ca employed was pute. pacity acting scope within the of and was (4) employment; corporation or a or April of Tree sent Green ap manager corporation ratified or acceleration, stating of Garcias a notice Oaks, Hammerly proved Inc. the act. needed their home Garcias to vacate Edwards, 958 days. ten This within letter made reference issue, Tree In its first Green asserts that required placement mortgage of insur- exemplary are not entitled recover Garcias ance, required par- which was not under the they damages as a matter of law because agreement. ties’ The Garcias hired an attor- jury finding any these failed to obtain a on ney, demanding who sent Green Tree a letter exemplary legal requisites imposing for dam accounting enclosing proof proper- corporation. The ages against a Garcias insurance, ty required which was under the requirement conclusive counter that the was responding parties’ agreement. Without law, alleviating ly established as matter letter, Green Tree filed suit jury finding. Alterna the need obtain 25, 1996, July Garcias on Garcias tively, Tree the Garcias assert that Green defamation, for violations filed counterclaims by failing properly pre error waived Act, the DTPA and Debt Texas Collection during jury charge con serve the error distress, intentional infliction of emotional ference. usury. reply Although case Green Tree asserts its trial commenced Octo- days testimony, it raises a “matter of 1997. After two brief that issue ber issue, issue, charge dis- not a Tree filed a non-suit. The non-suit law” presented agree. Evidence was followed the trial court’s refusal to reconsider original jury’s finding necessary predicates for ruling on the contract between Garcias, corporate liability punitive dam- imposing Tree and the was not which following appears from the discus- during discovery, ages. It produced admissi- to submit the that the trial court refused ble as evidence. trial court noted sion predi- discrepancies original it concluded the instruction because existed between requirement cate requiring object estab- Green Tree to submit Furthermore, lished: instruction. the Garci- as assert that Green Tree failed to raise And, Honor, MR. BLACK: Your conference, at formal also to the absence of that Green Tree’s statements any question corpo- which would make the during the issue were made an informal dis- entity rate liable the em- preliminary cussion of the instructions ployee agent, any predicate question proposed charge and not di- regard to that. specific question. rected at a MR. BRESNAHAN: PJC— preservation In order to resolve MR. BLACK: Such as—excuse me—such issue, we must first determine whether the imputing liability ratifications, vice exem principal, anything like that. plary damages against are to my MR. BRESNAHAN: ques- That was separate submitted as a or as an tion, Judge, here since Jury Charge instruction. Texas Pattern already had an admission the stand provides 110.31 for the submission of the were in the course and predicate requirements as an instruction to employment when they did all these accompany exemplary damage question. things. PJC 110 directs that. We had *5 Texas, State BaR of Texas PatteRN JURY managers right two (indicating) — (1997). 110.31 Although PJC the CHARGES says managerial Subsection capacity when “law,” Jury Charges Texas Pattern are not act was done. If there a finding was not heavily upon by are relied the bench already, I don’t what know else— and bar and based on what the committee THE right. COURT: He is perceives present the to law be. H.E. Butt correct, If trial the court was the instruction Bilotto, 197, Grocery v.Co. 928 S.W.2d 199 properly Ford, refused. See Lone Star 1996), (Tex.App. Antonio 985 'd — San aff McCormick, 734, Inc. v. 838 S.W.2d 740-41 (Tex. 1998). July 14, addition, 22 S.W.2d In (Tex.App. 1992, [1st Dist.] writ de — Houston in by one recent case reviewed the Texas (instruction nied) mitigation Court, Supreme predicate requirements the properly refused where trial court deter instruction, were submitted Court and the party duty mitigate). mined had to no Un did not find that the submission instruc Salaiz, like the error in Drilling J & C v.Co. tion was defective. See Edwards v. Ham 632, (Tex.App. 866 S.W.2d 640 Antonio Inc., (Tex. Oaks, 270, — San merly 908 S.W.2d 274 1993, writ), no which Green Tree cites as App. 1995), modified, [1st. Dist.] — Houston proposition, for their “matter of law” (Tex.1997); 958 387 S.W.2d see also Delta appeal the focus of the in error is the Cruz, 660, Drilling v.Co. 707 662-63 jury charge, judgment. reviewing not the 1986, (Tex.App. Corpus Christi ref'd writ — jury charge error, we first must consider n.r.e.) (submitting predicate requirements as preserved whether Green Tree the error so gross to negligence question). instruction right complain. that it has the to foregoing, Based on the we conclude that the properly are submit A. of Error Preservation ted as an instruction. initially Tree Green asserts that did not waive the the Garcias’ failure to obtain neces- must We next determine whether an sary jury finding objection preserve because the Garcias had the is sufficient to error to burden submit a elicit where an instruction on the re finding, quirements exemplary damages and Green Tree was not addition, failure. Garcias’ omitted from the object- properly Green Tree that it charge. contends Rule Rules of 278 Texas question relating ed the omission of a “[failure to Civil Procedure states that to sub mit [an issue. Garcias counter shall not be instruction] deemed predicate finding ground have been submitted for reversal of the unless a instruction, question, form substantially of an anot correct has been [instruction] jury charge provision. pattern applicable by the requested writing and tendered par- addition, court the trial informed complaining judgment.” party Tex.R. response had an instruction ties that he read rule 278 must be Civ. P. 278. Tree. Under these issue raised pre- Supreme with Texas Court in connection preserved facts, Tree hold that Green preservation of error addressing cedent objection. The reference through its error jury charges. charge, the court’s pattern jury Dept. Payne, Highways In State requisite in- had that he reassurance 235, (Tex.1992), the Court stated: requirement struction, the tender satisfied but one test determin “There should be under rule 278. ing preserved error in the party has objection was suffi- that an Having held charge, party made and that is whether complaint, we Tree’s preserve cient timely complaint, the trial court aware Tree made whether Green next consider ruling.” plainly, Since and obtained a contend that objection. The Garcias repeatedly Payne, emphasized has the Court only objection made timing of holding in connection with during “informal” conference requests, objections wording as instructions discussing preliminary while ourselves serting that we should concern proposed charge and was promote form with common sense specific question. Green Tree directed at over See Dallas Market Center substance. objection was sufficient contends that Liedeker, Development Co. v. 958 S.W.2d complaint of its since apprise the trial court (Tex.1997); & Alaniz v. Jones objection the discussions was made while (Tex. Neuse, Inc., 451-52 being recorded. 1995); Services v. Dept. Texas Human Hinds, 904 S.W.2d 637-38 timing of precedent, the recent Under Inc., Furthermore, Frito-Lay, in Ramos v. appear to be determi does not *6 preservation specifically the Court addressed native, provided that the trial court was suffi of error to the submission of an issue complaint. Alan ciently See informed requirement regard predicate with to the iz, record in this at 451. The against assessing exemplary damages a cor trial court clearly demonstrates that the case poration. 784 complaint. After Tree’s was aware of Green case, ease, in this the defendant ready that as they were that counsel stated plaintiff since the failed to sub asserted that agreed “argue charge,” the trial court to managerial capacity mit to issues as on which charge. Upon requested copy based, exemplary damage award could be dispensing boilerplate with summarily obligation object to it had no because charge, following ex language to the plaintiff findings on had the burden to obtain change occurred: necessary lia all elements such that, agree Your BLACK: I with MR. bility. that Id. Court noted since we think that this third Honor. But don’t object request specific failed to or defendant liability alleged corporate paragraph about findings, could be omitted' element there boilerplate. paragraph The third is to be found the defendant deemed 110.31 of simply not follow section does it. Id. there was evidence the— implies that the error Court’s statement argument is no with THE There COURT: specif preserved could been either a have language. PJC that. That’s not Allowing proper request. ic or a is no— But there MR. BRESNAHAN: is preservation approach either consistent here, I don’t unless have a concession we Payne. light holding with my damages. put that into want to have Ramos, reject holding we stand, I on the I think the witness was required not Tree’s contention that was him, you in the course asked object. I’d scope employment at the time. And case, that is finding from the Court that Tree’s like in addition to Green an issue in this case. objection, was made to even express reference THE Jury Charge.1 COURT: It shouldn’t be. That Pattern was order to ensure undisputed. added, that the instruction issue of predicate liability subsequently is, Honor, raised MR. BLACK: It Your insofar again by Green Tree: as may claiming exemplary the Garcias damages. This not the instruc- Honor, And, MR. BLACK: Your regard corporate tion with liability Tree would also absence of alleged exemplary damages. Just because any question corpo- make which would somebody somebody works for and makes entity rate liable for the em- misrepresentation, carry that doesn’t ployee any predicate agent, through going corporate that that is to be regard with to that. liability. The test is also included else- MR. PJC— BRESNAHAN: regard where PJC MR. BLACK: Such as—excuse me—such corporation. that’s And another number. ratifications, imputing liability vice talking THE COURT: You’re about differ- principal, anything like that. things. Okay. ent my ques- MR. That was BRESNAHAN: MR. Okay. BLACK: tion, Judge, if that here since THE corporate liability, COURT: On already had an on the admission stand punitive damages that’s for the instruction they were in the course and say ratifying employment did all when these acts, language. Okay? and all that things. 110 31 directs that. We had PJC MR. I think BLACK: But this is managers right (indicating) two — apples oranges because this is Mr. managerial says capacity Subsection when language. Bresnahan’s It doesn’t come act finding was done. If there was not a from a case. It come doesn’t from the already, I don’t know what else— language PJC. This read itself can im- right. THE COURT: He is pute liability just because the did something. precedent preservation Given the liberal THE can COURT: We take care of that. that has been established the Texas Su- problem. I corpora- That’s mean the Court, preme reject the Garcias’ formalis- servants, acting whatever, tion through its charge tic distinction an “informal” between that’s —I have an instruction on that. I conference and a “formal” conference. *7 mean, get myself, can this is—I it’s objections Green Tree’s were on the record pretty simple stuff. and made the trial court aware of its com- exchange, appeared plaint, timely From plainly. Adopting this the the trial court appropriate approach by intended to add an common sense advocated the charge. Supreme Payne, instruction It would further Texas we find that Court appear from preserved the reference PJC 110.31that Green Tree the error in the objections the trial charge through quoted court intended to insert an court’s the instruc- tion similar to the one contained the Texas above.2 Jury Exempla-
1. PJC 110.31 entitled "Instructions on State Charges PJC Texas, Bar of Texas Pattern (1997). ry Against Damages Assessed Master for Acts 110.31 Servant,” provides: predicate require- 2. The Garcias the contend that Exemplary damages can be assessed exemplary damages ments for can be Corporation principal [Don ] [ABC ] Davis as a judgment. deemed in of the Garcias if, if, agent by because an of an act but Frito-Lay, cite Ramos v. Inc. principal doing a. the authorized the and the proposition. at 668. 784 S.W.2d rule act, manner or 279 of the Civil Procedure Texas Rules of states agent principal b. was unfit was may that the trial court deem an element that him, employing reckless in or jury was omitted from the omission agent employed managerial request c. in a occurred in the or absence of capacity acting by party. in the defending and was P. 279. Civ. Tex.R. Ramos, employment, or the defendant failed to the omis- therefore, element; employer manager employer’s findings d. sion of the deemed or approved permitted ratified or the act. were under rule 279. 784 S.W.2d at
783 intended to unreason- guage that is Juiy Charge B. Error reader; or ably abuse the hearer trial court refuses to submit When a cqllector placed debt 2. whether instruction, re an the issue is whether the disclosure of telephone calls without quest reasonably necessary to enable the making name of the individual & jury render a verdict. Vinson call, intent to the willful (Tex. Moran, 946 405 Elkins S.W.2d any per- annoy or threaten or harass 1997,writ dism’d App.—Houston [14th Dist.] number; son at the called by agr.); Organization, General Resources caused debt collector 3. whether (Tex. Deadman, 907 Inc. v. S.W.2d 30 form any person expense denied, 1995), writ App.—San Antonio tolls, telephone tele- long distance is If the refusal S.W.2d charges incurred gram fees or other request on a based determination communication, with- by medium of unnecessary, the trial court’s we review disclosing the name of the out first under abuse of discretion determination call person making telephone or Moran, 405; at Dead standard. communication; transmitting the 30; man, Farm at also State see caused a 4. the debt collector whether Nicolau, Lloyds v. 451-52 ring repeatedly or telephone con- (Tex.1997) (trial in court’s refusal submit making tinuously repeated or discretion). struction reviewed abuse calls, telephone with the continuous ruling, The basis the trial court’s any person harass at willful intent to argument appeal, and the Garcias’ is that number; the called finding was as to repre- collector 5. whether debt the evidence because party any per- to a sented third conclusively wrongful established that wilfully refus- that a son consumer exemplary damages as acts for which were pay non-disputed debt when ing to (1) corpo acts of sessed were either: dispute is in reason the debt (2) authorized, ration; or com acts has notified such and the consumer managers. corporate mitted or ratified writing of the dis- debt collector Tree counters that the evidence does pute; or all establish that the tortious pro- threatening any action to take underlying malice hibited law. findings were committed liability questions addressed The other manager or a or that such acts were autho (1) or at- Green Tree collected whether: rized or ratified. fraudulent, de- tempted to collect a debt Question Jury number one addressed (2) representations, ceptive misleading claim for collection ef- unreasonable (3) Garcias, or Tree slandered forts. engaged in unfair or uncon- *8 question reads: by collecting attempting or scionable action charge, Jury Question any expense No. 1: or inciden- to collect fee incidental obligation unless such tal you Do find that Tree Financial Green fee, expense expressly autho- charge or Corp. engaged in unreasonable collection by agreement creating the obli- rized efforts, any, proximately if which caused consumer. legally chargeable gation Feliciano and Garcia? evaluating Fi- In whether Green Tree evidence to conclu order engaged col- Corp. in unreasonable nancial requirements sively establish efforts, any, you if must consider lection exemplary damages, for the assessment of circumstances, any: following conclusively evidence must establish liability could have any acts for which used each 1.whether collector debt (1) by jury either: lan- profane language or been assessed or obscene case, improper. finding instant deemed Since Tree did Gre.en (2) Tree; by by authorized Green mony procedures committed collecting used recklessly who was unfit and operating Garcias’ debt were standard (3) employed by Tree; by Green committed a procedures, specifically Tarte refuted that he managerial employee within the of his any authority supervi- had to tell Feliciano’s (4) employment; or approved by ratified or debt, sor that Feliciano was on his behind Oaks, Inc., Hammerly Green Tree. 958 and denied that he had done so. at 391. An issue is es addition, jury could have based its tablished when the evidence is such that liability finding, part, action in Valdez’s ordinary there is no room for minds to differ calling Sylvia “stupid.” jury may well as to the conclusion to be drawn from it. action, have been offended such an Corp. Triton Oil & Gas v. Marine Contrac punitive could have been a reason for the Inc., Supply, tors & damage proved award. No evidence (Tex.1982); Jensen Const. Co. Dallas Valdez’s action was authorized or ratified County, 920 (Tex.App.— Tree, punitive damages against so denied). Dallas writ jury Since the improper would be without a could have based its answer to the malice finding corporate authorization. question any wrongful one of the acts listed in questions, we would examples These are two of actions for need to conclude that the evidence conclu jury imposed liability which the could have sively predicate requirement established a but could not have assessed dam- wrongful each of those order to ages against Obviously, Green Tree. accept reasoning. the Garcias’ was evidence of numerous actions undertak- managerial employ- en and its wrongful One of the acts listed ees that would the assessment of representation number one was the punitive damages, jury might well have by the debt party collector to a third punitive damages against assessed person other wilfully that a consumer is re- Tree had a given. instruction been fusing pay a non-disputed debt when the not, But is was so we do not know. The trial dispute debt is in reason and the in overruling court’s error Green Tree’s ob- consumer has notified such debt collector in jection forces us to reverse the writing dispute. The Garcias intro- trial court’s and remand the cause duced represented evidence that Green Tree to the trial court for a new trial. Because we supervisor both Feliciano’s and the credit punitive damage reverse the award based on refusing pay bureau that issue, Therefore, debt. Green Tree’s first do not address could have as- complaints exemplary damages sessed other leveled Green Tree based on its find- ing against punitive damage representation that Green Tree made the award in issues two, supervisor to Feliciano’s three with malice. Felici- and four. supervisor
ano testified that his had been contacted and was told that Feliciano was not Damages Reputation to CHARACTERand paying his debt. Tarte testified issue, fifth Green Tree chal place that he did phone call and that lenges legal sufficiency and factual policy it was Green Tree’s to disclose $30,- evidence to award of speaking the nature of the call when to a damage reputation. 000 for to character and party, Therefore, supervisor. third such as a attempts Green Tree to differentiate between accepting supervisor that Feliciano’s reputation for loss to credit Tree, *9 contacted the evidence failed damages general person’s repu for loss to a conclusively to establish the re- tation and character. Green Tree asserts quirement damages. for the assessment of that since the to Garcias failed submit a conclusively The Green Tree caller was not damages reputa of measure for loss to credit managerial employee, established to be a and tion, jury the did not make such award. the action of the caller was not authorized, approved Although jury charge established to be the submitted the Although general ratified. damage there was testi- element of to character
785 a number jury charge ex- been a customer for reputation, the did not where she had and co-sign injury years loan for her son. Be- including of to a jury clude the from to credit permit her to the union co- fore credit would reputation as a consideration. Given loan, explain Sylvia required to sign the arose, excluding dispute in which the context union and the situation to a credit re- such from consideration would attorney. from This evi- a letter her submit charge. quire hypertechnical reading of a factually legally is sufficient to dence and preliminary The instructions state damage support jury’s for to the award charge in a [the] words are used in “when reputation. character and meaning sense that varies from the common- ly understood,” legal jury given is Green Tree’s sole Since we overrule Damage reputa- to character definition. award, damage we to actual in an to tion action slander ordinarily judg affirm the trial court’s would wrongful practices collection debt damage ment as to the actual award. How “commonly damage understood” to include ever, require of this circumstances case reputation. to for loss credit and re us to reverse entire complete new trial. mand the cause legal sufficiency considering point, we Miles, 377, Ford Co. 967 See Motor v. S.W.2d only the evidence consider favorable (Tex.1998) (Gonzalez, J., concurring). 389-90 disregard of all decision the trier fact and only permitted if partial A new trial is contrary. evidence and inferences to the separable part error “is without affected Inc., Stores, Havner v. E-Z Mart 825 S.W.2d Tex.R.App. P. parties.” unfairness to (Tex.1992). 456, If is than a 459 there more Tex.R.App. 44.1(b) 81(b)(1)). (formerly P. If finding, to support scintilla of evidence only for we this case a reconsider remanded challenge no fails. v. evidence Stafford jury damages, the second ation (Tex.1987). 14, Stafford, 726 16 omission remand would know what act or evidence, reviewing sufficiency the factual jury liability upon the first found be based must all the assess evidence and reverse purposes determining whether that act finding challenged for a new if trial or omission met the conscience, clearly shocks demonstrates punitive damages. imposition for the See bias, great weight or is so Miles, v. at Ford Motor Co. 967 S.W.2d 390 preponderance man evidence it is (Gonzalez, J., jury concurring). second ifestly unjust. Co., Pool Ford Motor presented is to hear the evidence entitled 629, Bain, (Tex.1986); Cain v. jury, including the first the statements made 709 S.W.2d Under Tarte, failure to Valdez and Green Tree’s finders, analysis, we are fact do not forceplace notify regarding the Garcias witnesses, pass upon credibility insurance, failure ment of Green Tree’s opinion do and we not substitute our for the explain arrearage, the basis for the fact, conflicting trier of even evi there inability to Tree’s introduce evidence upon dence which different conclusion forceplaeed, allegedly insurance it Corp., supported. Clancy could be v. Zale Tree’s notice of acceleration demand (Tex.App. — Dallas home, vacate and Green the Garcias n.r.e.). 'd writ ref subsequent Tree’s lawsuit. second We find the evidence is also entitled hear Green Tree’s defens es, witnesses, factually explanation of its and its its legally award is both actions, employees. in as that of its supervisor was as well sufficient. Feliciano’s short, all on remand must consider mortgage that he was behind on his formed wheth of the evidence order determine payments. supervisor him to Feliciano’s told will er the actions which base problems care of Felici- take his front of punitive damages. the assessment the nec ano’s co-workers. was denied essary purchase sewing machine credit Conclusion Commercial Credit told problem was a the Green Tree The trial court abused discretion necessary *10 refusing instruction Sylvia union to submit a account. went to credit jury charge relating predicate appropriate response to Green Tree’s re- requirements imposing punitive damages quest and was a short-hand rendition of PJC against corporation. punitive Since the 110.31. There is one instruction on damage punitive award in separable this case is not in this context: PJC jury’s liability determination, from the response 110.31. The court’s in answer to complaint reverse the trial court’s entire Green Tree’s about and PJC 110.31not being in charge partially remand the cause to the trial was court for a new unrealistic, trial. words of It given Since would PJC 110.31. have affirmed the damage actually actual the context and partial spoken, words award new trial imagine permissible the court facts, have been did not understand under the complaint Green Tree’s we order and the appeal costs of instruction it be taxed requesting. was parties who have incurred them. Nevertheless, giv- the instruction was not Opinion ReheaRing on Motion FOR en. In response urging to the of the Garcias already that there finding was that satis- Opinion by: HARDBERGER, PHIL Chief fied requirements, the trial Justice. responded: court right.” “He is We cannot The rehearing motion for filed Feliciano agree necessary. instruction was —the (“Garcias”) Garcia is denied. We only remaining question respect with to the supplemental issue this opinion to address jury charge preserved is whether Green Tree any misunderstanding in interpreting our the error. opinion. earlier The reason for the reversal “There should be but one test for deter solely remand of this case is based mining if party preserved has error holding our that the instruction set forth in jury charge, and that is party whether the section 110.31 of Jury- the Texas Pattern made the trial complaint, court aware of the (“PJC”) Charge requested required, timely plainly, ruling.” and obtained a given. but not Dept. State Highways Payne, initially The Garcias contend that Green Tree ob our conclusion that properly pre Green Tree jected twice the absence of an instruction jury charge served the error was erroneous on the because we failed to read the entire record punitive damages against corporation. jury charge. to the read the We objection, its first expressly Green Tree ref record, complaints but deference to the erenced 110.31. PJC The trial court’s state Garcias, raised we have re-examined punitive damages ment that the instruction it. It following. reveals the say would need to “that the rati acts, fying the language” and all that evi requested Green Tree 110.31. PJC understanding dences its of Green Tree’s expressly Tree referred to it its correct objection. Later, in reviewing punitive complained number and that it was not in the damages question, Green Tree raised a sec charge. boilerplate Green Tree said the lan- ond “to the absence of guage contained in the regarding corporate entity which would make the liable inadequate. course and agent, any for the acts of the correctly asserted: “This is not the predicate question regard with ... to that regard instruction corporate with imputing liability ratification, such as vice liability alleged exemplary damages.” principal, anything like that.” Garcias’ coun responded The trial court then that counsel acknowledged sel that Green Tree was refer for Green Tree and counsel for the Garcias 110.31; ring however, to PJC Garcias’ coun talking were things. about different argued predicate requirement sel respect court noted that corpo- established, and the trial issue, rate “that’s for the agreed. court say instruction corpora- acts, ratifying tion language.” objections and all that timely Green Tree’s This comment plain. response, the trial court was an Prom the trial court’s *11 award, punitive uphold the we cannot understood such an doubt that the trial court is no damages award. requesting— Tree was the instruction Green acts, ratifying and all the “the we could further assert that The Garcias Concerning language.” ourselves question jury’s num- response to ignore the over promoting and not form common sense damages punitive uphold the one and ber substance, Devel- Dallas Market Center See predicate requirement if we the award found Liedeker, 382, 386 opment Co. v. wrong- conclusively toas the established (Tex.1997), objec- hold that Green Tree’s we question in two. jury number ful act listed jury preserve the tions were sufficient punitive jury the could award charge error. wrongful damages if it the award based with malice act that was undertaken complaint in The Garcias’ second jury was harm to the Garcias. The caused rehearing their motion for relates to jury question number instructed answer conclusively argument the evidence es regarding the Garcias were seven whether predicate requirements for as tablished the if a result malice answered harmed as of damages sessing punitive against Green “yes.”1 liability questions Given any of the argument, held: response Tree. In to this we instructions, jury could have found the jury answer could have based its “Since wrongful jury question in acts listed that the wrongful question on to the malice of to the as a one caused harm Garcias number liability questions, listed in the we would acts malice, wrongful act result of but conclu need to conclude that the evidence jury question in number two did listed sively predicate requirement as established a as harm to the Garcias a result cause wrongful each of acts in order those case, jury have malice. such a would reasoning.” accept the The Garcias affirmatively jury question responded uphold punitive can dam assert we seven, wrongful act listed number but the ages predicate requirement award even the support jury question two would not number just one of established as to jury punitive damages award because wrongful acts. harm not find that it caused to the Garci- did separate a result of malice. Without as as regard wrong- “laundry to the With list” wrongful act findings as to each whether one, jury question ful acts number listed harm the Garcias a result caused prior explains opinion our the reason malice, determine which action cannot uphold punitive damages award. cannot jury with malice found to be undertaken jury wrongful Some of the acts which punitive award. support the have under engaged could found Green Tree jury question one number would jury uphold court cannot verdict This award, punitive damages while others proper instructions. that is rendered without findings not. We no discrete and no rely have award cannot on a We instruction, wrong- given do not jury so we know which if the is not damages. one ful act or listed number Where rules for such instructed, jury its jury properly used as its verdict might have the basis is not law which it must punitive damages contrary award. be to the Since could given nec- punitive damages guided. award was not could have based it, guide and we deter- essary rules to cannot wrongful act that would not (b) An act Green Tree Finan- Jury question provides: seven or omission number cial, (I) objectively from 1, 2, 3, when viewed which you questions If answered have standpoint Tree Financial at 7; of Green "Yes", Question answer otherwise then involved an extreme time of its occurrence question 7. do not answer n risk, probability considering degree you by preponderance evi- Do find others; potential magnitude harm to Sylvia dence the harm to Feliciano and (ii) had Financial which from malice? Garcia resulted actual, subjective in- risk awareness Malice means volved, (a) proceeded with con- but nevertheless specific A intent Tree Financial rights, safety or wel- injury scious indifference to cause to Feliciano substantial Garcia; others. fare of *12 mine from the verdict that was reached puni-
whether the have awarded
tive given it had been
instruction.
This court’s decision does not “trivialize” Nothing verdict. could be more
important legal system. But a properly they may
must be instructed so that
properly according assess the facts Appellees’ rehearing
law. motion for is de-
nied. Jorge
Ex Parte Luis LOPEZ
No. 04-98-00523-CR. Appeals Texas,
Court of
San Antonio.
Feb. 1999.
Rehearing April Overruled Ramon,
Alberto M. Law Office of Alberto Ramon, Pass, Eagle Appellant. M. Serna, Attorney, Roberto District Robert Little, Attorney, Eagle Lee District Assistant Pass, Appellee. LÓPEZ,
Before ALMA L. Justice STONE, CATHERINE Justice PAUL W. GREEN, Justice.