Helena Chemical Co. v. Wilkins

Hicks a motor with operating vehicle license, a prohibited out driver’s conduct Transpor section 521.021 of the Texas necessary It is for the tation Code. complaint any allegations to include re common garding public school buses or or Further, no exceptions carriers. since 521.021, com contained within section Hicks, Ormy, se. pro James Callus Yon required negate any ex plaint was Bernsen, Sr., Ralph Attorney, County J. State, ceptions. v. Bragg Hondo, appellee. 574, (Tex.App.-Houston Dist.] [1st refd) (“If RICKHOFF, Justice, pet. exceptions penal to a Sitting: TOM LÓPEZ, Justice, separate or placed ALMA L. W. statute are a section PAUL offense, GREEN, Justice. defining article from the one necessary part are not a of the defini or OPINION offense, tion or it is not description negate exceptions in the necessary to such GREEN, Opinion by: PAUL W. Justice. instrument.”). charging Accordingly, James Callus Hicks was convicted a the trial court is affirmed. jury justice of driving without county He appealed license. court, a trial de novo conduct- where was trial, Following jury

ed. he was convict- again pay ed and ordered to fine. $200.00 appeals county He his from conviction court. affirm. We licensing re- Hicks maintains that HELENA CHEMICAL CO. and quirement of section 521.021 of Co., Ap Hyperformer Seed

Transportation must be to re- Code read pellants/Cross-Appellees, (1) quire only persons license for those (2) bus, a school operating operating a in use public motor vehicle while as a Wilkins, Kenneth Tom WILKINS and carrier, (3) operating a motor vehicle Individually Chapotal Farms d/b/a while in use as common carrier.1 Hicks Properties; and Porciones 99 Geen complaint charging him with an argues Wilkins, and Mark Individu specify offense is void because fails to ally and Tabasco and Wilkins d/b/a he which of the three offenses above Family Partnership, Appel Limited it fails to violating accused of and because lees/Cross-Appellants. negate exceptions to these offenses. No. 04-99-00107-CV. well It is established the State require a valid Texas can and does driver’s Texas, Appeals Court motor ve persons operating license for all San Antonio. Tay roads hicles on the State. See State, lor v. 151 Tex. Crim. March 2000. privi to drive is a (right governed by and is rules lege, right, not a State, regulations); Coyle (Tex.App.-Dallas clearly charges

pet.). complaint Legis- Chapter clause of lature, Acts the 47th argument his on an incorrect 1. Hicks bases Session, Regular reading enacting 1941.” and out-of-context "the Garza, L.L.P., Skaggs, Skaggs John & McAllen, appellee. HARDBERGER,

Sitting: PHIL Chief Justice, STONE, Justice, CATHERINE DUNCAN, B. Justice. SARAH

OPINION HARDBERGER,

Opinion by: PHIL Chief Justice. Company Hyper-

Helena Chemical Company (collectively former Seed “Hel- ena”) appeal entry of judg- ment, Geen, Kenneth, Tom, in which and Wilkins, Mark as well respective as their entities, (collectively business “the Wil- kins”) $360,000 plus were awarded attor- ney’s following a jury fees trial. Helena five appeal. raises issues on In issue, its fourth Helena asserts that asserting Wilkins are barred from their claims of their alleged because failure to fulfill the requirements arbitration of the issue, Texas Agriculture Code. In its fifth Helena claims the trial court abused its admitting testimony by discretion in third, first, expert. its Wilkins’ issues, second Helena evi- asserts legally dence is and factually insufficient to causation, support the jury’s verdict as to liability, damages. cross-appeal, On the Wilkins claim the trial court erred in its assessing pre-judgment manner of in- terest.

Background manage Hidalgo

The Wilkins farms and Starr Counties. Helena sells seed. The Wilkins purchased Cherokee 1992, 1993, sorghum1 from Helena in 1994. The Wilkins claim to have relied literature, upon promotional Helena’s Powell, Murray, Charles C. Lisa Atlas which states that Cherokee “excellent & Hall, L.L.P., McAllen, Parr, (farmland dryland Keith Kevin no irriga- with little or [ tion) Ill., P. McJessy, Chicago, appellant. yield for potential.”2 ] Sorghum: "any economically impor- grain sorghum sorgo)." 1. of an or Webster's Collegiate Dictionary genus (Sorghum) tropical tant Old World (1991). Ninth New grasses similar Indian corn in habit spikelets pairs hairy with ... on a rachis purported 2. The Cherokee seed is also to have (axial structure) ]; (as esp: plant "good [ a cultivated field to charcoal rot. When tolerance” (the

Although day the the Wilkins’ 1992 Cherokee Seed and Plant Board crop produced high yield, stated that claims did not arbitration). crops suffered from re- Cherokee qualify appeals; yields. disagree parties duced as appeal the Wilkins as the date from yield. cause reduced The Wil- prejudgment computed. which interest claim crops kins “failed the.

produce as perform expected, or Discussion They represented by argue [Helena].” 1. Arbitration that the failed because Cherokee issue, In its fourth Helena asserts that drought resistant or tolerant charcoal asserting the Wilkins barred from rot. they failed to comply their claims because that the Cherokee seed the requirements imposed planted failed because had cot- Agriculture Agriculture Code. moisture) (which year ton reduces soil provides,'in part: Code field, portion earlier on a (a) purchaser of designed When a seed yield significantly reduced the Cherokee planting claims to have been part According on that field. damaged the failure of Helena, to charcoal Cherokee tolerant produce represent- perform (but immune) rot in grows is not well by the re- by warranty ed label (but not dryland conditions when the un- the quired to attached to seed derlying depleted soil has of its been mois- this or as a result of under subtitle previous in a crop). ture cotton negligence, must sub- 'purchaser the The sued Helena February on pro- mit the to arbitration as claim the alleging Helena had violated a by chapter prerequi- vided as (“DTPA”), Deceptive Trade Practices Act purchaser’s site to the exercise the of warranties, express implied breached right legal a action maintain February and committed fraud. On against the labeler.... in plea filed a abatement and (b) ap- Any period of limitations compel motion arbitration of the Wil- until plies to the claim shall be tolled 5, 1995, the April kins’ claims. On trial day filing the date of 11th after the proceeding granted court abated the the report with the commissioner of compel. August motion to Helena’s On by of the of arbi- arbitration board 1996, the Wilkins submitted matter tration. 16,1996, the Tex- arbitration. On October (c) damages A of due to the fail- Plant claim as and Seed Board declined arbi- by ure Sub- crops trate the matter of the seed as described because were (a) may in conditions.” trial court of not be “field The section this section lifted the subsequently abatement. as counterclaim or de- asserted a a any brought by in action fense juryA found for the Wilkins on the against purchaser a until seller recovery, except different theories of a claim to purchaser submitted has of question fraud and whether Helena arbitration. knowingly. acts The had committed these (d) in an which action When court in damages to the Wilkins jury awarded of by has seed $360,000. been filed seller the amount of The court (c) Helena, by of this described Subsection against award- entered purchaser from section ing prejudgment interest October receives from rot, effectively develops equipment pick it as if it grain sorghum charcoal cannot- Also, shorter, sorghum literally "lodges,” or shorter. if the stem becomes weak. It down,” pull parts yield. other undesirable "falls reduces The best combine will in (called "trash”), plant sorghum as well as dirt height harvesting with a com- of chest-high, harvesting and rocks. bine is because (3)hold purchaser’s hearings.... copy complaint informal arbitration, by in accompanied filed written notice intention use (h) arbitration shall board consider

the claim a de- counterclaim or field other any inspection or data sub- action, fense in seller’s action by party report mitted either its Any limi- stayed. period shall be and recommendation.... applies tations that to the claim is suspended day until the 11th after (Vernon Supp.2000). 64.006 The ef- § filing the date the commis- fect of is that: arbitration report sioner of the of arbitration litigation involving complaint any the board of arbitration. been subject arbitration (Vernon AgRIC. § 64.002 Tex. Ann. Code chapter, any may under this intro- party added). re- The code report duce the of arbitration as evi- provide seed quires bags to notice alert- dence of the facts the report, found the farmer ing requirement to the sub- such may give weight and the mitting claims to id. arbitration. fact, findings the arbitration board’s bag 64.008. The an tendered as law, conclusions and recommendations to this exhibit court contains such a notice. as to and costs as the court Agriculture ar- Code sets forth the determines advisable. The court procedure, part, bitration as follows: into any findings also take account (a) purchaser A may begin arbitration respect board of arbitration with to the by filing ... a complaint sworn and a any party cooperate failure of fee, filing provided by department proceedings, including any arbitration purchaser rule. The copy shall send a as to finding delay the effect of in filing complaint certi- seller the arbitration claim the arbitration fied mail. Except case of ability to board’s determine the facts of planted, has not com- been the case. plaint must be filed within time (Vernon 1995). § Id. 64.004 necessary permit inspec- to We did not effective tion of the plants any reviewing under field condi- locate Texas case law these tions. Agriculture sections of the Code as they this

relate to case. If the Wilkins’ claims barred, (c) then the trial court did not The commissioner shall refer complaint subject jurisdiction matter and the answer arbi- hear tration investigation, board for find- the case.

ings, and recommendations. a. Standard of Review (e) report The question arbitration of whether a trial board fact,

shall findings include subject conclu- jurisdiction court has matter is a law, sions of and recommendations as question subject of law to de novo review. to costs.... v. Mayhew Sunnyvale, See Town 964 (f) In the its investigation, 922, (Tex.1998). course of the S.W.2d 928 We construe any may: board or of its members and, petition favor of Wilkins if

(1) necessary, review the entire record to de purchaser examine the and the any supports if

seller on all matters arbi- termine evidence the dis that the relevant; tration jurisdiction board considers trict hear the cause. See Texas Ass’n Bus. v. Air Texas (2) grow production a representa- (Tex. Board, 440, Control 852 S.W.2d 446 sample through tive of the seed 1993). pleadings Unless demonstrate of the facilities commissioner jurisdiction, we or a the absence assume the designated university under supervision; properly jurisdiction commissioner’s trial court had over 750 (Vernon AgRic. § 64.002 Equipment Peek

the case. See v. Serv. Code Tex. Ann. (Tex.1989). Co., 802, 779 804 complaint The code states “the Agriculture b. Texas Construction necessary time must be filed within the Code permit plants inspection effective statutory construc purpose § field See id. 64.006 under conditions.” tion is ascertain intent. See legislative (Vernon Here, Supp.2000). the Wilkins Littleton, Woods v. 554 S.W.2d claim did not submit the to arbitration clear, intent is Where the they began after time that until well effect, if will be even the result given As a poor performance. notice Cherokee’s appears to be harsh. See Boudreaux v. this result, us is the issue whether before Co., Texas and N.O.R. claim to arbitration submitting delay refd). (Tex.Civ.App.-Beaumont writ to the Wilkins’ bar catastrophic acts as intent, Legislature ascertaining legal claim. provided phrases that words and shall according read in context construed Non-Binding (2) ARBitration Seed usage. grammar the rules of and common for seed claims The arbitration scheme 311.011(a) § See Tex. Gov’t Code Ann. and seedmen recognizes “farmers (Vernon 1998). consider, A court most desir- agree litigation among object things, sought other seed.” way complaint able to settle a about consequences any and the be obtained (1991). Op. Att’y Tex. No. DM-3 Gen. 311.023; particular construction. id. seed, although process The arbitration Comm’n, Employment Cole á without potential avenue for settlement (Tex.Civ.App.-Fort Worth dism’d). trial, third also for an unbiased “provides writ add- party investigation.” Framing Properly ed) (citation omitted). the Issue Recognizing arbitra- mandatory non-binding benefits of agreements policy Public favors tion, Association disputes through the American Seed legal agree to resolve Trade Corp. ments EZ Pawn to enact legislators to arbitrate. See has worked state Mancias, (Tex.1996); investigation aid statutes to in the Co., Anglin B. v. Tipps, Jack Inc. See, e.g., resolution of seed claims. Ameri- (Tex,1992). “Questions of Ass’n, Legislative Trade can Seed Affairs must be addressed with a arbitability 2000) (visited February healthy policy for federal fa regard the <http://www.amseed.com/ann- ” voring Mitsubishi Mo arbitration.... rept/ar98/ar98p7.html>; Seed American Chrysler-Plymouth, v. Soler Corp. tors (visited Ass’n, Legislative Affairs Trade Inc., 614, 626, 473 U.S. 105 S.Ct. 2000) February <http://www.am- (1985). ar parties L.Ed.2d 444 The must >. seed.com/annrept/legis.html fall the any claims that within bitrate non-binding seed In furtherance of the scope agreements, of arbitration even the requires the statute process, arbitration might though litigation result. piecemeal a produce that the board only arbitration Byrd, Inc. Reynolds, See Dean Witter fact, “findings conclu- report containing of 213, 220-21, 470 U.S. 105 S.Ct. law, as to of sions and recommendations (1985). If the had L.Ed.2d 158 Wilkins Agric. § 64.006 costs.” Tex. Code Ann. a claim to arbitration at submitted (Vernon required party is Neither all, barred. The their claim would be into report to introduce of arbitration very clearly legislature stated has dis- Id. 64.004. court evidence. purchaser must the claim to “the submit weight to the arbitra- “give cretion to such provided by chapter arbitration as ad- [it] determines [report] tion board’s pur a of the prerequisite exercise in the legal language a if the right chaser’s to maintain action.” visable.” Even (“has responsibility causing first of bears the sentence Section 64.004 been to who arbitration”) subject end, is read to re- of delay. for the In the the State Seed (as actual the claim quire arbitration of Board to and Plant refused arbitrate to opposed to submission of the claim were to exam- they matter because unable arbitration), explains the second sentence crops in “field conditions.” We ine the do, may regardless of what the court at- parties apparently note that the were whether the claim arbi- was submitted to to effectuate a non-trial resolu- tempting empowered tration. is See id. court tion the Wilkins’ claims. note also of We parties’ to consider the failure to cooper- that Helena could have moved to dismiss ate, “including any finding as to the effect court any the suit at time after the trial delay filing in the arbitration claim or arbitration, to than agreed compel rather ability arbitration board’s to deter- findings. wait until the board issued its mine the Id. case.” facts motion, Such a if made before the Wilkins added). contemplated The arbitration arbitration, eventually have sought would legislature is replace our not intended to very compelling been because the right parties’ to in day necessary had not fulfilled the conditions fact, the legislature expressly court. legal to maintaining their action. possibility accounted for the party a case, present In the until waited (or might delayed purposely delay) fil- Board determined “that re- ing a claim for arbitration. after (on quest qualify did arbitration” Remedy (3) The a Statute PRovides FOR to October before it dis- moved Failing Timely File in a (on to Claim miss the Wilkins’ lawsuit November Fashion 1996). A positive delay outcome of the parties continuing attempt

A that the were to reading strict of the Texas Agri might culture Code lead one believe that claim resolution without the conse- a farmer’s failure to submit a claim to quences litigation. An unfortunate re- crop arbitration while the in “field condi delay sult of the that the arbitrators barring tions” has extreme effect investigate crops could not under “field Yet, the claim altogether. plain lan not, therefore, could conditions.” Helena guage the statute reveals there is expert have a neutral the effi- investigate fundamental failing difference between not, however, cacy of its seed. Helena was submit timely the claim a fashion remedy. without The trial court could comparison failing a claim at submit have considered all the circumstances If party all. fails to submit claim surrounding delay adjudicating fashion, a timely arbitration in the trial case. take remedial light action ina- We find an arbitration board’s delay circumstances or the con crops in condi- bility investigate “field party If parties. duct fails plaintiffs not in a tions” does bar the claim altogether, submit claim to arbitration Chapter case that falls under 64 party may legal the not maintain action. Agriculture Code. The defendant adequate has remedies that could The Parties’ Actions trial pursued been after the court ordered case, In present conflicting the tes addition, the court arbitration. trial timony as to responsible exists who was necessary to has the tools fashion reme- the prolonging investigation nego for and necessary. trial if dy during itself We the tiation before suit was commenced. to We do choose exercise restraint here. parties dispute The not that the claim do legislature not to make law where our wish ap not to was submitted arbitration until The was already spoken. trial court proximately sixteen months after the trial account empowered delay to take such into granted to compel court Helena’s motion as parties Agriculture arbitration. The instead differ under Section 64.004 the 752 Pharms., Dow Inc. Because the Wilkins submitted their surmise.” Merrell

Code. (Tex. arbitration, Havner, 706, to that-their claim we conclude v. 953 S.W.2d 712-13 claim is not barred.3 The trial court had to admit is decision evidence jurisdiction hear to the case. court. Rob discretion of trial inson, v. (citing 923 S.W.2d at 558 Downer Testimony Expert 2. Inc., Aquamarine 701 Operators, (Tex.1985)); 238, Ginsberg v. issue, argues In its fifth Fifth 105, Appeals, Court 686 S.W.2d 108 court its trial abused discretion admit- We have stated an abuse testimony Dr. ting expert, Wilkins’ to of discretion exists when court fails (“Pleunneke”). opinion Pleunneke His analyze correctly. law apply the appropri- is not an was Cherokee seed Hallstead, v. Muecke No. 04-97-00483- dry ate sorghum crops land CV, 328129, (Tex.App.-San WL at *2 (Starr farm where is located 2000, h.). 29, pet. Antonio March County).4 Pleunneke is to an unqualified testify expert as Admissibility b. testimony expert that his an is unrelia- complain ble. Helena does not that his per Texas Rule of Evidence to testimony amounts an unreliable scienti- “qualified mits is as an a witness who skill,' fic opinion. expert by knowledge, experience, testify “in the training, or education” to a. Standard of Review opinion if form of an or otherwise” “scien tific, technical, knowl specialized or other proper the trial court Whether edge the trier of fact under will assist ly testimony admitted Dr. Pleunneke’s a fact stand the evidence to determine subject to an abuse discretion standard issue.” Tex.R. 702. Such testimo Evid. E.I. Pont review. See du de Nemours ny substantially outweighed Robinson, must 923 S.W.2d Co. danger prejudice, unfair confu (Tex.1995); Stores, Inc. v. Gar Wal-Mart issues, cia, sion of the or other factors. (Tex.App.-San Tex.R. 974 S.W.2d Anto bright-line test Evid. 403. There .exists no nio no pet.). We examine the entire guide particular us to whether a testimony expert’s substance “to qualified testify expert. as an opinion if witness is determine is based on de Hudgins, rely solely monstrable facts and does See James denied) writ assumptions, possibility, (Tex.App.-El Paso speculation, filed, pro Agriculture regarding 3. issue Code Our resolution Helena's arbitration timely ample the Wilkins’ failure to arbitrate in room to fash vides the with a Texas case dis fashion consistent remedy. ion a argument. during cussed oral In Hines v. Hash, Supreme Court of Texas affirmed non-irrigated "Dry 4. land land” refers judgment of the trial court a DTPAcase upon precipitation for relies natural moisture. give statutory Hines failed to Hash the notice viability dry parcel is of a land relative impending prior to com of an DTPA claim Whether amount rainfall receives. Hash, mencing suit. See Hines v. diy farming depends land seed is suitable for (Tex. (concluding "that if a factors; ability upon example, various its plaintiff under files an action for charcoal rot deter- tolerate diseases such as notice, required giving first DTPAwithout dry land a seed is suitable for mines whether requests timely an abate defendant crop drought-stressed farming. A is more ment, proceed abate the trial court must So, dry likely develop rot. if a charcoal explained ings”). that the court of The court well, crop land not tolerate charcoal rot does remanding reversing appeals erred in (assum- below-average occurs and if rainfall because Hash "waived notice under the case ing irrigation), crop such a is at an in- no by failing request DTPA to abatement.” developing As charcoal rot. creased risk today odds Our result is not at with Hines earlier, crop a discussed a that filing recognize we that a claim for because developing rot greater chance of charcoal necessary order arbitration is to maintain yields. in decreased untimely claim could result legal action. When an for

753 (E.D.Wis. Kloehn, F.Supp. (noting guide that the absence of “definite 1488 making lines for the determination of focus ... is on (stating “[t]he education, experience, whether a witness’s subject ‘fit’ at between matter skill, training qualify as an the witness expert’s issue and there familiarity expert”). focus We instead whether with, title”); expert’s and not on expertise expert’s “goes very to the Broders, (cautioning at 924 S.W.2d give matter on which he or she is to an holding does not mean “[o]ur Heise, opinion.” Broders v. 924 S.W.2d only neurosurgeon testify can about injury in fact from an cause of death brain”) Ali, added); v. Blan Admitting c. Did the Trial Court Err in (Tex.App.-Houston [14th Expert Testimony? Dr. Pleunneke’s pet.) (indicating phy Dist.] (1) Qualifications expert sician who serves as an witness specialist need not be a a particular argues that Pleunneke is profession phy branch on which the unqualified opinion to render an regarding ability testimony). Cherokee’s to charcoal sician offers Pleunneke has tolerate rot. Helena also claims that experience, because Pleunneke had “on occasion” char with plant is not a pathologist, unqualified he is sorghum. coal rot in grain opinion to render an on diseases affecting Agronomy is the “science of man- soil plants. agement production.” and crop The Con- trial, At the Wilkins had the “burden to ed.1988). (7th Dictionary cise OxfoRd show that possesses] special [Pleunneke] The Wilkins offered evidence that Pleun- knowledge to the very matter on which experience neke has addressing issues re- Broders, he” testified. at 152- nutrition, garding plant physiology, 53; State, Negrini v. 130- plant environmental factors that affect 31 (Tex.App.-Corpus Christi growth. central issue regarding quali Pleunneke’s Although Pleunneke is plant pa- not a fications qualified is not whether he is to thologist, the trial court’s to decision allow an opinion render to respect Chero him to testify is not an abuse of discretion. kee’s inherent susceptibility to charcoal reasonably The trial could have judge con- Instead, rot. regarding issue his cluded that Pleunneke’s background quali- qualifications is whether qualified he is to testify viability fies him to as to the render an opinion regarding Cherokee’s County Cherokee seed in the harsh Starr suitability dry for farming. land In deter Although susceptibility environment. mining qualification pro Pleunneke’s rot, disease, charcoal plant is the claimed vide opinion such an an important factor Cherokee, Achilles’ Heel of Pleunneke to consider is his ability to conduct re necessarily need search, pathologist be a gather information, and assimilate testify to that He meaningful experi- data in a effect. used his relating manner to a plant’s he ence to a conclusion performance. Is able to formulate on the basis marshal necessary research, tests, observations in study of independent support of his conclusion? regarding and observations Cherokee’s suitability dry farming. land How dis- Pleunneke’s ability plants ease affects an im- undoubtedly testify expert as an is limited to those portant part plant science the abili- experience areas within his training. production effectively. ty manage crop See Tex.R. Evid. 702. Pleunneke is a plant permitted, example, We have an ortho- agronomist. an scientist and He does not give (one pedic surgeon expert testimony pathologist have to be a who studies disease). regarding radiologist’s plant interpretation occupational His status x-rays radiologist’s subsequent does not and the ac- ability testify undermine his an expert Ghiatas, in this Nunley case. tions. See Silvas 1997, pet. might County.” in (Tex.App.-San happen Antonio Starr He testi-

denied) fied, (stating professions “They’re generated “[t]heir statistics and specialties interrelated and their inter- be taken of He should with salt.” twined”). acknowledged performance of range Cherokee, exists for and that “[w]ith opportunity had the court all variability comparing kind them qualified consider whether Pleunneke was ...,” Pleunneke would have done more testimony. We find that expert render tests, added). rely than on the voir dire cross-examination Helena’s and inquiring He local recommended of Pleunneke could all have been factors “to what farmers see varieties have been jury weight that the as to the considered acreages.” testimony. working large his We conclude that because them on his match the in which qualifications area our whether inquiry Because is Pleun- testimony, he offered the trial court did his support neke’s observations conclu- allowing abuse discretion in Pleun- not its sions, testimony we find to be reliable. an testify expert. neke only His include not trials observations question, into encompass but research Reliability (weather other sources and weed control also that Pleun Helena testing). reports, publications, disease and testimony is neke’s unreliable. on testimony Pleunneke also based his argue testimony not does Pleunneke’s comparisons crops adjacent unreliable, is scientifically would farm. it to subject analysis an the elements testimony and his Based Pleunneke’s articulated in E.I. du Pont de Nemours evidence, his ex- supporting opinion as an Co., Robinson, Inc. v. S.W.2d 549 pert Helena asserts Although is reliable. (Tex.1995). Yet, testimony still must discounting of the trials are fatal his with the comport principle reliability state- reliability, his we understand his articulated Robinson. See Gammill v. consid- ment to be that there are factors Chevrolet, Inc., Williams Jack merely er than the trials. Because other (Tex.1998). though Even sub his flows from his observation conclusion ject testimony matter of Pleunneke’s is factors, trials, well as the of these other nature, inquiry Robinson is scientific court did err we conclude that the trial not necessarily appropriate. See id. at admitting testimony. his Gammill, Following the 727. lead “analytical an inquiry becomes whether (First, Sufficiency 3. of Evidence Sec- exists; do Pleunneke’s observations gap” ond, Issues) & Third his support conclusions? See id. at 727. evi- that the Wilkins’ complains explained that Cherokee seed Pleunneke legally factually insufficient dence (that is, has performs good characteristics causation, support jury verdict as yield) very well growth and favorable liability, damages. In non- adequate when there is rainfall. was in- precipitation trials where

irrigated a. Standard of Review (con- perform Cherokee did not frequent, sistently) as well as other seed manufac- legal a “no considering evidence” observation, tured Helena. This only the evi sufficiency point, we consider itself, suggest would that Cherokee of the trier dence favorable to decision dry farming because there suited to land in disregard of fact and all evidence expectation precipitation of consistent Davis v. contrary. ferences to the farming in drya land environment. Antonio, City San more than a scintilla If Yet, agreed Pleunneke with the state- offered, fact, on a evidence is really aren’t some- ment that certain “tests should overrule the issue. See Kindred us much what thing very that tells about 755 SuppoRt (Tex. Con/Chem, Inc., 61, 650 63 S.W.2d Evidence Causa- Sufficient 1-3)6 “great weight” or reviewing a (Jury Questions tion? the court should insufficiency point, factual whether legally The issue assess all the and reverse for a evidence factually sup sufficient exists to evidence only challenged new trial if finding is port proposition that Helena’s failure against great weight prepon so warranty, or comply with Helena’s of the as to be manifestly derance evidence action, deceptive act or unconscionable was Co., unjust. Pool v. Ford Motor 715 producing damages. Wilkins’ cause of the (Tex.1986); Bain, 635 Cain v. S.W.2d did not err in ad Because the S.W.2d 176 “Under mitting expert testimony Dr. Pleunneke’s finders, analysis, we not fact we (discussed earlier), sufficient evidence ex pass upon credibility do not of wit jury’s in support ists of the verdict as to nesses, nor do our we substitute causation. fact, of the trier of even if there is In addition to testimony, Pleunneke’s conflicting upon evidence a different per- various field trials were conclusion could be supported.” Thrift support pos- formed across also Texas Hubbard, 76 (Tex.App.-San sibility that Helena knew that its seed denied). Antonio pet. not be suited for Al- dryland farming. (First Liability b. Causation though some of these trials were discussed Issues) Third Pleunneke, during testimony others during testimony were referenced The court following submitted the ques- corporate representative. Helena’s Ample jury; jury tions “yes” answered evidence regarding repre- exists actual to each: regarding sentations Helena made 1. Did the engage any defendant (promotional the seed literature and state- false, or misleading, deceptive act or ments sales for exam- representatives, practice a producing that was cause ple). When evidence Cherokee’s lack- of damages plaintiffs? to the included, luster dryland performance is [“False, misleading, deceptive or act these amount to representations mis-rep- practice” defined.] resentations. 2. Did the engage any defendant unconscionable action or course of Explain (A) FailuRE OtheR Causes action that a producing was cause of asserts any damages to the plaintiffs? poor cotton the cause of the prior crop is

[“Unconscionable action or course of yield. action” that one of the explained.] also possible poor yield reasons for the Wilkins’ failure, 3. any, Was the if of the defen- planting related to over 1993. The dant comply warranty with a “if Supreme Court stated that producing damages cause plaintiffs? comply there are other causes of plausible [“Failure warranty” defined.] injury negated, or condition that could be plaintiff excluding must offer evidence jury answered “no” the fourth certainty.” causes those with reasonable Ques- question, which fraud. addressed Havner, Merrell Dow Pharm. tions 5-8 concern and attorney’s (Tex.1997) add An any fees. affirmative answer to ed); see E.I. questions first du Pont de Nemours & Co. v. three would been suffi- (Tex.1995) Robinson, jury damages.5 cient to allow the to award regarding complaint The court "producing 5. defined cause” as an 6. Because Helena’s lia- "efficient, that, exciting, contributing bility jury from the same cause and causation stem sequence, damages, questions, produced a natural we our discussion on combine any.” if these issues. the knowledge enjoyed by an (regarding speculation expert who to rule other failed out causes of the dam in determin buyer important and seller is age); Parker v. Employers Mut. Liab. Ins. puffing. to ing whether amount statements (Tex.1969) Co., (requir the seller “decisive test whether ing explanations reasonable other causal buyer igno of the asserts a fact which be possible excluded in order for a cause to merely opinion judg rant or an states or “probable”). be elevated to the status of ment of which the on matter seller explained The Wilkins the cotton- special knowledge and on which the grain by is required rotation the local buyer may an expected be also have office; his ro crop-management neighbor opinion judgment.” and to Id. exercise his cotton portions tated and on certain Machs., (citing Inc. v. Lor Royal Bus. effects; acreage of his without adverse (7th Corp., raine F.2d Cir. the alleged planting” “over occurred be 1980)). should be the Wilkins Although the cause Wilkins followed recommen as to judgment expected exercise of in planting dations Helena their 1993 had “special which seed to Helena plant, crop. perfor knowledge” in of their seed’s fight

Here, jury could have considered the mance in previous trials. explanations that the Wilkins offered to the statements do We conclude that possibility rebut other In causes. then- puffing amount to mere because fight explanations, of these we do not be- disparate positions of specificity against great lieve that the verdict is buyer and sell- enjoyed by the knowledge weight preponderance evidence er. manifestly so unjust. as to be (C) Accuracy of Statements Puffing (B) Non-Actionable weight Helena ac also contends that its Helena accuracy supports evidence If puffing. tions are non-actionable Wilkins; the by the upon relied statements question specificity statements in “the lack qualified by language brochure upon an affirmation of fact which a statement the characteristics warranty predicated,” they could then “can “averages” and different seed are puffing, amount to and would not be location, vary upon date depending case, In present actionable. Id. Hel conditions, planting, [and] environmental multiple representations ena made oral re- Although Wilkins does not type.” soil regarding suitability Wilkins Cherokee’s point, point Helena does not spond to this dry farming acreage. land on his More upon relied allegedly to other statements importantly, repre Helena made written (such representations as oral the Wilkins catalogue sentations in its seed that indi made Helena’s and recommendations suitability dryland Cherokee’s cated brochure representatives). Even if the farming was better than other seed misrepresentation, to a does not amount every Not seed brand brands sold. was misrepresentations exists other evidence of dryland purported to “excellent” (testimony in the record yield re potential. Helena’s statements factu- Helena that is representative) sales garding the tolerance level of Cherokee to jury verdict. ally support sufficient to imprecise rot charcoal do amount Instead, vague opinions. they are used for Evidence of Unconsciona- (cid:127) Insufficient Helena comparison purposes with other bility (Jury Question brands, multiple and were made on occa asserts, extensive Helena without orally writing. sions both as well as Cf. Autohaus, briefing, support that no evidence exists Aguilar, Inc. 1990), regarding verdict unconsciona- jury’s (Tex.App.-Dallas writ denied curiam, per bility. we have concluded Because n.r.e.). Asgrow, actions did to mere writ ref d Helena’s not amount at puffing, least a scintilla of evidence ex a trial court’s court reversed (in testimony) the form of ists seed; the sales purchaser favor of a support the verdict that took would contract, bags, and invoices all con “advantage knowledge, of the lack abili non-warranty provid clause that tained a ty, capacity of a experience, person ed, “Asgrow no other or part, gives degree.” unfair grossly Because warranty, express or implied.” further complain does not that the evidence 444; at 440 n. see also John Deere Co. factually insufficient as to unconscionabili (Tex. Tenberg, S.W.2d Civ. ty, need not more we consider whether 1969, writ) App.-Beaumont (stating than a scintilla of on this evidence exists “cannot appellee rely upon the breach not, if it point. Even did would verdict implied implied warranties because war upheld still be as to the in question first in excluded in the written ranties were jury charge. appellee and signed strument” that argues that did Helena because it accepted). require payment for then the seed warranty ef- language We find that is no paid there consideration in order to implied fectively disclaimed warranties give unconscionability rise to an claim. merchantability and partic- fitness for a true, if this is damages Even awarded ular as well as purpose, express warran- supported by could the jury be the result that a warranty upon ties. We conclude as to question. reached the first ap- which can be based does not liability pear support jury question exist (3) Relevant Wabranties WERE Excluded Recovery number 3. under the first and (JURY Question jury questions possible. second is still Helena argues liability cannot be based on a breach of warranty because (Second Issue) Damages c. Al “relevant warranties were excluded.” found no error in We have the trial though company seed im may exclude judgment entry as to arbitration plied by dealing warranties course (fourth issue) or in expert the admission of usage, trade we any did. not evi locate (fifth issue). testimony We also have dence to this effect in the record. Helena evidence legally found that the and fac- argues also excluded the warranties tually support jury sufficient to verdict (here, by written document the seed on (Helena’s invoices). issue, ticket, bag, as to causation first relat- purchase two). agreement purchase (unsigned ing jury one and We questions Wil kins) is in the provides record “condi damages. now turn the matter of In its tions of sale” that war implied exclude the issue, argues Helena second that the Wil- of merchantability ranties for a and fitness prove kins failed to the amount of their particular purpose relatively in what reasonable damages certainty print. conspicuous respond The Wilkins support losses do not lost prior would ‘be replace that “it difficult’ to such profit Helena also contends that damages. stage volume of at when large seed” damages should have been limited to is delivered. purchase price seed. adopted

The Uniform Commercial Code (1) to Purchase Price of Limitation Seed permits merchant to exclude goods. limit warranties See Tex. Bus. & limitation of liability Helena’s 1994). (Vernon 2.316 Ann. Com.Code price of the purchase seed is effective only arising from the breach damages previously applied We have a non-war Co. warranty. Southwestern Bell Tel. See company. ranty clause favor of a seed (Tex. Gulick, FDP Corp., Seed Co. v. Asgrow J.R. Antonio A limitation on dam (Tex.Civ.App.-San contractual judgment profits, created for future lost ages statutorily preclude is not effective to de rights, right as a to recover for such becomes whether the issue ceptive acts. See id. at 576. Because we proved properly and with have concluded that the should certainty. jury

be affirmed as the first second calculation of antici “[PJrecise re questions, argument we address the pated profits has never been essential garding relating sufficiency of evidence recovery any It is business. sufficient to damages. if from there is data which the loss certainty.” ascertained with reasonable Certainty Regarding Dam- Reasonable omitted). (citations added) ages case, present In the from evidence exists because the jury could have determined history of net from Wilkins have losses damages. that the fac responds (which they years 1993-967 include when given jury, possible such as the tors Cherokee), they did not farm with speculative in na yield crops, of the were history failed establish of See profits. a ture, objective making an determina thus Instruments, Texas Inc. v. Ener Teletron damages of impossible. tion the 276, gy Management, 877 S.W.2d court reiterated that Teletron Helena also Wilkins Battery the rule established in Southwest profits. “The failed to account for net Owen, 423, Corp. 115 v. 131 Tex. S.W.2d assessing general damages rule for 1097, 1098-1099 (1938): losses, in a of crop expressed number recovery may that a had on precedents, order be market value' of Texas is ‘the of loss amount of profits, account of at crop, the lost of as measured portion his competent must by loss be shown maturity crop, of the less cost he would certainty. with evidence reasonable and harvesting marketing have had in ” to have Where business shown Harvest portion.’ lost See International making a already been established and (Tex. v. 197 Kesey, er Co. profit when the was at time contract stated, cor Another court has “The committed, breached the tort such damages profits of for loss of rect measure together other pre-existing profit, with profits, net which is defined as ‘what circumstances, may indicate and facts after remains in the conduct of business certainty with reasonable the amount of receipts from its all of deducting total profits lost. carrying on expenses incurred in the busi ” (citation omitted) Id. at 279 add Ins. Surplus St. Paul Lines ness.’ ed). Yet, appeals at least court of one Co., Co. Dal-Worth Tank history held that “the absence 1995), part, in (Tex.App.-Amarillo aff'd not, itself, preclude a new profits does grounds, 974 part reversed in on other recovering prof from lost future business (Tex.1998). “In the calculation S.W.2d 51 Software, Inc. Prentice- its.” Orchid should made profits, net allowance Hall, Inc., (Tex.App. expenditures plaintiff would denied). ” Austin writ The Fifth Cir compelled to make.... have been recognized cuit has this trend he to the method Wilkins testified as Hiller Prod. law. See v. Manufacturers calculation. damage to arrive at used Am., Inc., 59 Group Research N. F.3d upon measure- example, he relied For Cir.1995) (5th (declining in order government agency ments aby a profit history “the regard absence determine recoverability of dispositive I to come with deficits.... acreages up busi respect lost with a new profits” ness). per [gov- from the yield took the farm history Because of loss does not $111,000 approximately 1992. profit 7. The Wilkins had find is within the agency] multiplied ernment it times We that the award grain the number of acres was range the Wilkins. evidence offered planted per up farm to come with the awarded We conclude yield.... number I have I took under supported certainty. with reasonable yield the actual on the rec- based sales (Wilkins’ produced ords of what we and subtract- Pre-Judgment Interest Is- 4. yield ed from what should have Cross-Appeal) sue on deficit, been ... come up [t]o argue cross-appeal, On then I deficit multiplied the times computed when it court erred acres, I multiplied number of then interest from the date the prejudgment price. that times the (October 23, court lifted the abatement he Wilkins admitted that did not include 1996). The the trial Wilkins claim expenses his estimated loss- computing pre-judg- should order es, payments, such as additional lease ment to accrue from November interest costs, transportation elevator (which six reflects months after charges. These would have been expenses “occurrence,” alleged May the date of the higher enjoyed if greater the Wilkins 20,1994). Yet, yield during years question. (both in the record reflects the form of Preservation Error a. exhibits) testimony as well as what Helena maintains that because the Wil- payments lease would have been. Wilkins argue theory recovery regarding kins of testified also that that the grain “check-off appeal that prejudgment interest on is dif- elevator deducts” could have been refund- below, ed, they ferent from that argued have he explains why did not add that cost potential damages sought. preserved regarding not error this He issue. testified he the costs for dry- believed In their proposed judgment, attached to ing “were reflected as a shrink- Entry their Motion of Judgment, for in ing yield” an rather than as actual “[p]re-judgment is interest calculated to charge. A copy of in the statement which days commence 180 the Wilkins noti- [after Helena canceled the debt for fied problem Helena of the Wilkins’ with in 1994 was an admitted as exhibit as well. Motion Modify, seed].” their to Finally, Wilkins testified the amount of Judgment, Correct Reform Wilkins acreage devoted to seed other than Chero- pre-judgment ask an award of interest evidence, kee. With this jury could “pursuant of Article to the terms 5069- yield have reduced the attributable to non- 1.05(6),” Legislature which the re- Texas arriving at damage Cherokee seed their pealed replaced 1997 and Section award, recalculated lease payments, 304.108 of the Finance Code. See Tex. Fin. regarded the various elevator costs as (Vernon § 304.108 1998 & Ann. Code either reflected in the yield refundable Supp.2000). the Wilkins appeal, argue On (and calculation). not part of the net cost pre-judgment for an award of interest un- (which The Wilkins’ estimated Quality Parking, der Cavnar v. Control $490,- they jury) submitted to was Inc., 696 In their S.W.2d $860,000 jury’s of 855.58. The award is brief, the Wilkins to concede that appear $130,855.58 lower than what the Wilkins on predecessor Chap- their reliance sought. The not pro- Wilkins did fail Code, ter 34 of Finance Article 5069- data necessary support vide factual 1.05(6),“was inappropriate.” claim profits of lost net with reason- right The waived their may Calculating certainty. profits able the lost complain appeal regarding prejudg- on in consideration of all the relevant fac- of they ment because state differ- interest impossible, is not particularly light tors ground sought. $130,855.58 ent for the relief See jury that the deduction Tex. R.App. 33.1(a)(1)(A). requested Assuming, made to P. without damages. the Wilkins’ provisions). The preserved (providing similar deciding, that the issue review, trial statutory ap- our we conclude recognized court “ in- prejudgment to award court’s decision interest proach prejudgment Vorks 23,1996 beginning terest October intend- system penalties’ of rewards and of discretion. an abuse Johnson, encourage ed to settlements.” (citation omitted). at 962 S.W.2d 530-31 of b. Standard Review prejudgment of interest is not Accrual in prejudgment The award of “a example, For court automatic. periods delay generally during terest interest does prejudgment order trial court. left to the discretion of the See delay during periods of in the trial.” accrue Jones, Lege 304.108(a). § “A court shall consider: 1996, no (Tex.App.-Houston Dist.] [14th (1) defendant; writ). a by caused periods delay trial decision in refus delay caused a claim- ing periods from its interest calculations offset 304.108(b) delay periods litigant caused ant.” Tex. Ann. Fin.Code (Vernon reviewed under the abuse discretion recognizes Supp.2000). Johnson A trial abuses its discre standard. others, among helps provision, arbitrary, unreason tion if its action “is Johnson, 962 encourage settlements. able, guid to [any] and without reference predecessor (discussing at 529 ing principles.” [rules and] Goode 304.108). Yet, does not §to statute “[t]he (Tex.1997); Shoukfeh, 943 S.W.2d entirely offsetting, such which is mandate Hall, W. Standards Review Wendell court.” within the discretion of (1998). Texas, Mary's L.J. 29 St. Casas, at 260. rather discretionary Because the offset is mandatory, we not substitute our than do The record reflects the Wilkins’ opinion for that of the trial court. See regarding law understanding Casas, 960 City Alamo v. necessity arbitrating seed claims. 1997, pet. (Tex.App.-Corpus 260 Christi after the Wilkins waited sixteen months denied). matter before sub trial court abated the their claim to Con mitting arbitration. c. Discussion did argue they versely, Cavnar, Supreme In the Texas Court any any They argue not delay. cause law, that, a prevailing held “as matter to con delay stems from Helena’s desire may prejudgment recover interest plaintiff negotiations. tinue (based daily 365-day on a compounded year) on accrued actions, the trial court parties’ Given judgment.” Quality time of Cavnar pre- reasonably commenced could have Parking, 554 Control 696 S.W.2d abate- it lifted the judgment interest after (Tex.1985). abrogated the The court later the role could have considered ment. It holding explained Cavnar to the giving rise party played that each Cavnar, there the Court decided “[w]hen the Wil- delay concluded that pretrial in- governing prejudgment was no statute discretion in determin- kins had most Tex., Inc. Higgins & terest.” Johnson arbitra- ing to submit the claim for when Energy, 962 S.W.2d Kenneco tion. Johnson, court adopted to the Texas statutory predecessor “prejudgment Conclusion Finance Code held on earlier begins interest accrue judgment. affirm trial We (1) after the date defendant days a claim or written notice of receives B. Dissenting opinion by: SARAH 531; at is filed.” Id. see date suit Tex. (Vernon DUNCAN, Justice. Supp. § 304.104 Ann. Fin.Code DUNCAN, Justice, SARAH B. tice for than more six months after abate dissenting. trial).”). granted ment until date set for

I respectfully dissent. Misrepresentation Apart DTPA — Represented Warranty Failure to Perform as From Label Warranty on or Label Apart from the printed information on majority holds the Wilkins’ claims packages, labels the seed the Wil- are not barred they because “submitted allege only kins misrepresentation. one arbitration,” their claim to “[t]he Wilkins, According repre- empowered court was to take such delay sentative Elmore told them that Cherokee into account under Section 64.004 However, “good” awas seed. alleged this Agriculture Code.” Helena Chem. Co. v. misrepresentation amounts to no more Wilkins, (Tex. 18 S.W.3d than non-actionable puffing. Prudential h.). App. Antonio pet. — San Assocs., Ins. Co. America v. Jefferson However, it undisputed the Wilkins did Ltd., (Tex.1995) (hold- request arbitration until approximately ing statements that a “building was ‘su- sixteen months after the suit was abated fine’, perb’, ‘super and ‘one of the finest and, for that purpose result, as a ” properties little City of Austin’ claims that they were “damaged by the “were not misrepresentation of material failure of the seed to produce perform fact merely ‘puffing’ but or opinion”). Nor represented by warranty byor the label will this required support jury’s to be statement attached to the find- seed”1 were arbitrated; rather, the, ing that Helena and Hyperformer arbitration commit- board determined the “request ted an unconscionable act or course of did not qualify for arbitration.” Accord Castillo, action. See Latham v. ingly, section 64.004 does not apply. See (Tex.1998) (“To be action- Agrig. (Vernon 64.004 Tex. Code Ann. (A), able under subsection the resulting 1995) (“In any litigation involving a com noticeable, unfairness must be ‘glaringly ” plaint subject that has been the of arbi flagrant, complete and unmitigated.’ chapter, tration under [t]he Koonce, (quoting Chastain v. also take into any account ... (Tex.1985))). finding as to the effect delay in filing Because arising the Wilkins’ claims out ....”) the arbitration claim (emphasis add of alleged misrepresentations from apart ed). Therefore, even if we view “must” in the label package on the seed .are section 64.002 of the Agriculture actionable, and their claims arising out of Code as directory rather mandatory, than the label are barred their failure to and even if the Wilkins’ timely failure to timely arbitration, institute I institute arbitration would re- jurisdictional, was not timely failure to submit verse the trial judgment their claim to and ren- arbitration during the abatement ordered der Hy- favor of Helena and for that purpose should have resulted in performer. majority Because the fails to the dismissal of their claims arising out of do so and instead affirms the trial court’s the label on the package. Hines I judgment, Cf. must respectfully dissent. Hash, (Tex.1992) (A trial court should plaintiffs dismiss a

DTPA if suit give fails to the notice required by the DTPA “while the action is

abated for that purpose.... See Miller (Tex. Kossey, denied) (no App. writ no —Amarillo Agric. 64.002(a) (Vernon 1. Tex. Code Ann.

Case Details

Case Name: Helena Chemical Co. v. Wilkins

Court Name: Court of Appeals of Texas

Date Published: Mar 8, 2000

Citation: 18 S.W.3d 744

Docket Number: 04-99-00107-CV

Court Abbreviation: Tex. App.