Petroleum Solutions, Inc. v. Bill Head D/B/A Bill Head Enterprises and Titeflex Corporation

NUMBER 13-09-00204-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

PETROLEUM SOLUTIONS, INC., Appellant,

v.

BILL HEAD D/B/A BILL HEAD ENTERPRISES
AND TITLEFLEX CORPORATION, Appellees.

On appeal from the 398th District Court
of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Vela
Memorandum Opinion by Chief Justice Valdez
This appeal pertains to a substantial leak of diesel fuel from an underground

storage system located at the Silver Spur Truck Stop in Pharr, Texas. By thirteen

issues, appellant, Petroleum Solutions, Inc. (―PSI‖), challenges the jury‘s verdict in favor

of appellees, Bill Head d/b/a Bill Head Enterprises (―Head‖) and Titeflex, Inc., and

sanctions issued by the trial court, which included the assessment of costs against PSI,
the striking of PSI‘s affirmative defenses, and a jury instruction that PSI destroyed, lost,

or failed to produce material evidence, namely a flex connector that PSI asserted was

the cause of the underlying leak. PSI further argues that: (1) it is entitled to judgment

on Head‘s breach of fiduciary duty, fraud, breach of contract, breach of warranty, and

negligence claims; (2) it is entitled to judgment on Titeflex‘s indemnity claims; (3) the

trial court erred in failing to properly instruct the jury on overlapping damages; (4) Head

is not entitled to attorney‘s fees or pre-judgment interest; (5) the judgment improperly

disregarded the jury‘s proportionate responsibility finding; and (6) it is entitled to

judgment on its claims against Head for payment to clean-up of the leak. We affirm, in

part, and reverse and remand, in part.

I. BACKGROUND

Head began his career as a truck driver and eventually began acquiring trucks to

establish a trucking business. At the same time, he worked part-time for a truck broker

in Edinburg, Texas. Head desired to open his own trucking brokerage and truck stop.

In 1991, Head purchased what was once known as The Tapadera, which is located in

Pharr, Texas.1 Head renamed the facility the Silver Spur Truck Stop. The facility

included nineteen acres of land, a restaurant, an office, and three steel underground

tanks and fuel dispensers. In 1996, Head added a motel to the truck stop. The facility

was operated as a truck stop and as a brokerage center for trucks shipping products

between Mexico and the United States.

A. PSI’s Installation of a New Underground Storage Tank System

1
The land upon which The Tapadera was situated had been previously contaminated by a fuel
leak, but the State had contracted with companies to clean up the leak. Head testified that when he
purchased the property, the prior contamination had been remediated.

2
 Shortly after purchasing the property, Head discovered that one of the steel

underground tanks failed a required tightness test, which resulted in it being removed

from service. Later, the Texas legislature passed a new law requiring that steel

underground storage tanks be replaced or modified to protect against leaks. In

response to the new law, in 1996, Head contracted with PSI to install a new fiberglass

underground storage tank system. Head selected PSI to do the work because PSI was

local and he had heard good things about the company. In fact, PSI is exclusively

engaged in the business of installing, repairing, maintaining, and removing

underground-storage-tank systems and compliance issues related to those systems,

and as Mark Barron, the president of PSI and Environmental Risk Management

(―ERM‖), testified, PSI is a leader in this industry.

PSI‘s proposal to Head included the removal of the three steel tanks and the

installation of two twenty-thousand-gallon, double-walled fiberglass tanks to be used to

store diesel fuel. Though State regulations did not require that the tanks be double-

walled, Head agreed to PSI‘s proposal and work began. Acting on Head‘s behalf, PSI

filed a construction application with the Texas Natural Resource Conservation

Commission (the ―TNRCC‖), now known as the Texas Commission on Environmental

Quality. After receiving approvals from the TNRCC, PSI removed the old steel tanks

and installed the new fiberglass tanks in a different area from where the steel tanks

were previously installed. Barron testified that:

First off, we installed the new underground storage tanks those two
20,000-gallon storage tanks. We then probably took their system out of
service because we had to build new trenches to the existing dispensers
to run new piping, which we did, and after we dug the tanks or installed
the tanks, dug the trenches, installed the piping, modified the existing
electrical to run to the new system, hook up the existing pumps that we

3
 moved from their old system to the new tanks, hooked all that up,
backfilled, powered concrete, checked everything out, did testing on the
tanks and the lines as it‘s required, started to open business, then we
moved the old system. That‘s the whole project, basically.

PSI completed construction on the new system in 1997.

B. PSI’s Installation of a New Release Detection System

According to Bill Morris, an inspector for PSI and a previous employee of the

TNRCC, on December 22, 1998, the State enacted new regulations requiring improved

release detection methods. Among the methods approved for usage by the State was

an automatic tank gauging system (―ATG‖), which reconciles fuel lost and added to the

storage tanks to determine if a release has occurred.2 At the time, Head was using the

stick method, gauging fuel in the underground storage tanks using long, calibrated

measuring sticks. In response to the new regulation, PSI recommended that Head

install a new ATG system. PSI told Head that the ATG system ―was supposed to do all

the work and should—should alert us whenever we had a leak.‖ Further, based on the

advice of PSI, Head agreed to the installation of the ATG system. PSI completed the

installation of the ATG system in October 1999. Because of the ATG system, Head

discontinued using the stick method to monitor inventory levels.

C. Problems With the Release Detection System

Shortly after PSI installed the underground storage tank and ATG systems, Head

began to experience many problems. Between 1997 and 2001, Head requested that

2
The December 22, 1998 regulation also allowed operators to utilize a soil-vapor monitor or a
statistical-inventory reconciliation; however, Robert Carpenter, the manager of the Silver Spur Truck Stop,
testified that PSI only recommended the ATG system. Carpenter explained that PSI told him that the
ATG system ―was supposed to be leaps and bounds over what they expected us to do [using the stick
method]. It was kind of a computerized piece of equipment.‖ Carpenter noted that the ATG system was
designed to be more accurate than the stick method. Morris later testified that PSI sold and installed ATG
systems, yet it did not do soil-vapor monitoring or statistical-inventory reconciliation.

4
PSI maintain and/or repair the system numerous times.3 Head testified that PSI‘s

systems caused him more problems than his old system and that PSI serviced the

systems on a ―[p]retty regular [basis].‖ Head recalled that the ATG system was usually

the reason for the problems. Head authorized Robert Carpenter, the manager of the

Silver Spur Truck Stop, to contact PSI whenever a problem arose with the systems.

Carpenter recalled that PSI was the exclusive entity that maintained and repaired the

systems.

In late October 2001, Carpenter went on vacation. When he returned in early

November 2001, Carpenter discovered additional problems with the underground

storage tanks. Gilbert Obregon, a clerk at the Silver Spur Truck Stop, testified that,

when reconciled each month, the ATG system always revealed an overage or shortage

with respect to the amount of diesel fuel purchased and the amount of fuel in the

storage tanks. Oddly, at the end of October, Obregon noticed that the ATG system

reconciled 100 percent. Nevertheless, while Carpenter was on vacation, the inventory

numbers became more volatile. Carpenter described the volatility as such:

The numbers of the inventory didn‘t match up, but it was taken off the
ATG. They were bouncing back and forth within the time I was gone.
One day we would have a minus fuel, and the next day a plus fuel, which
would balance out, but as time progressed on, these numbers—it became
evident that there was a potential problem on hand.[4]

As a result of his observations, Carpenter notified PSI. Head allowed PSI to investigate

the systems to determine the extent and source of the perceived problem.

3
The record reflects that between 1997 and 2001, PSI invoiced Head at least fifty times for
service calls on the systems that PSI installed at the Silver Spur Truck Stop.
4
PSI alleged at trial that the volatility could be explained as bad inventory-control accounting on
the part of Head. Sullivan Curran, one of Head‘s expert witnesses, noted that even if PSI was correct in
asserting that Head‘s inventory control records were bad, the ATG system failures made it very difficult for
Head to discover the leak.

5
D. The Leaking of Diesel Fuel

In the course of its investigation, PSI discovered that a major release of diesel

fuel had occurred. Experts estimated that more than 20,000 gallons of diesel fuel was

recovered from underground. Barron acknowledged that the fuel had leaked ―quite

aways [sic]‖ from the Silver Spur Truck Stop, including a drainage ditch that bordered

the property and that he had ―no idea how much [diesel fuel] they lost.‖ 5 Carpenter

denied seeing any diesel fuel on the asphalt surrounding the truck stop; however, one of

Head‘s expert witnesses, Daniel Airey, an environmental consultant for Ranger

Environmental Services (―Ranger‖), stated that, based on a monitor well Ranger

implemented on the northern side of the truck stop, diesel fuel leaked from 5.78 feet to

19.95 feet underground. Airey further noted that diesel fuel had leaked into the water

table, which is located at 18.82 feet underground where the monitor well was placed.

Upon discovering that a major leak had occurred, Barron traveled to the scene. Barron

admitted that when he was told about the leak, he anticipated that PSI would be sued

because PSI had installed the underground storage tank and ATG systems.

E. PSI’s Determination of the Source of the Leak

Several PSI employees investigated the underground storage tank system to

determine the cause of the leak.6 PSI examined the double-walled fiberglass tanks, the

system‘s piping, and the dispensers. Barron testified that the tanks were subjected to

5
In a mandatory ―Release Determination Report Form‖ prepared by PSI on December 11, 2001,
PSI informed the TNRCC that: ―Diesel noted in observation wells and in drainage ditch located in
proximity to facility.‖ PSI also noted that the soil and an irrigation drainage ditch were impacted.
6
Among those who arrived at the truck stop once the leak was discovered was Morris. Morris
testified that he went to the truck stop on his own volition and that he subsequently assisted Obregon in
creating inventory records to submit to the TNRCC. Obregon testified that Morris instructed him to round
off inventory figures before reporting the information to the TNRCC. Other witnesses stated that Morris
told Obregon to alter inventory entries for the months preceding the leak to reflect gross figures rather
than net figures. Head‘s experts opined that these figures were altered to minimize PSI‘s fault with
respect to the leak and to show that Head was not diligent in discovering the leak.

6
two pressurized leak tests, both of which they passed. PSI then tried to test the

system‘s piping, but PSI could not ―establish pressure on the piping.‖ Based on the

inability of the system‘s piping to establish pressure, PSI concluded that the leak must

be located somewhere within the piping system.

Later, Barron approached Carpenter and informed him that the source of the leak

was a faulty flex connector located under ―Dispenser Number 4.‖ Barron showed

Carpenter the alleged faulty flex connector and allegedly told Carpenter the following:

―I‘m the vendor, I would like to take this part over to our location to our office and keep it

for safekeeping and maybe testing at a later time.‖ Carpenter allowed Barron to take

the allegedly faulty flex connector because he ―didn‘t really have a place to store it.‖

That was the last time Carpenter or Head ever saw the flex connector. At trial, Barron

testified that he created handwritten notes about the allegedly faulty flex connector

when it was removed. He specifically recalled that the flex connector was manufactured

by Titeflex; however, when asked whether he still had his notes from that day, Barron

stated: ―I don‘t have the notes stating it [the flex connector] was actually Titeflex, no,

sir.‖ Photographs of the alleged faulty flex connector were admitted at trial, and Barron

admitted that none of the photographs indicated that the flex connector was indeed

manufactured by Titeflex. The flex connector was never produced by PSI; instead,

Barron asserted that PSI‘s attorneys took the flex connector and then submitted the flex

connector to PSI‘s expert, David Hendrix. Once Head filed suit, Hendrix was unable to

find the flex connector.

7
 In any event, PSI and ERM filed documents with the TNRCC on Head‘s behalf.7

In the mandatory December 11, 2001 ―Release Determination Report Form‖ that was

prepared, PSI identified the flex connector as the sole source of the leak. PSI noted

that the connector was replaced. Further, at the time the report was generated, PSI

revealed that 14,843 gallons of diesel fuel had been recovered from the ―tank cavity‖

and that 32,000 gallons of ―water/diesel/mix‖ had been extracted from drainage ditches.

Barron signed the report certifying that PSI was supervising all site investigation and

repair activities in accordance with accepted industry standards.

In addition to the TNRCC report, Morris created a chronology of the leak for the

benefit of Barron.8 In his chronology, Morris noted that, among other things, on

November 19, 2001, ―[t]he source of the release has now been determined to be from

the flex connector at dispenser #4. Both diesel tanks were tightness tested and

passed.‖ Morris‘s chronology was submitted as an attachment to the ―Release

Determination Report Form.‖

F. The TNRCC’s Response

While PSI was examining the underground storage tank system to determine the

cause of the leak, Head contracted with Barron‘s other company, ERM, to begin the

cleanup effort. Representatives of ERM informed the TNRCC of the release, and the

TNRCC sent Boots & Coots, a company specializing in the cleanup of fuel spills, to

7
At trial, Barron acknowledged that he is president of both PSI and ERM. Moreover, Barron
testified that ERM is a publically-traded company and that PSI owns 75% of ERM‘s stock. On cross-
examination, Barron admitted that PSI ostensibly controls the business of ERM.
8
Barron admitted at trial that much of the information contained in Morris‘s chronology was based
on information Barron had told Morris about the leak and the subsequent cleanup.

8
assist.9 Carpenter stated at trial that he was present during the cleanup; that ERM

appeared to lead the cleanup efforts; and that Boots & Coots employees reported to

ERM. Shortly thereafter, the fire marshal and other companies specializing in

remediation arrived at the scene to also assist in the cleanup. In addition to Boots &

Coots, the TNRCC sent a representative, Paul Cordova, to investigate the leak. 10 As

part of his investigation, Cordova was required to determine the cause of the leak.

Cordova testified that the flex connector was the cause of the leak though he admitted

to never having seen the flex connector; instead, Cordova relied solely on Barron‘s

statements regarding the cause of the leak. Cordova also requested monthly inventory

records for the truck stop, though Head was only able to quickly produce records for a

couple months. Cordova testified that PSI provided most of the information about the

truck stop to the TNRCC and that it appeared as if PSI was Head‘s representative.

Based on his investigation of the truck stop‘s inventory records and the

statements made by PSI, Cordova issued numerous citations to Head, with some of the

violations not pertaining to the discharge of diesel fuel.11 The citations amounted to

over $300,000 in fines assessed against Head; however, after negotiating with the

TNRCC and demonstrating compliance with numerous regulatory provisions, Head was

able to reduce the fines to approximately $30,000, with half of the fines paid to a charity

9
The record reflects that Boots & Coots performed work at the truck stop from November 8, 2001
to November 9, 2001, removing diesel fuel that had spilled into two drainage canals and irrigation canals
that were in close proximity to the truck stop and implementing ―boons‖ to absorb and stop the migration
of hydrocarbons. Boots & Coots charged Head $16,178.03 for their services. Head‘s expert, Daniel
Airey, testified it was a reasonable charge for the services provided.
10
It was established at trial that Morris used to work for the TNRCC and had trained Cordova to
be a TNRCC investigator.
11
Among the citations issued to Head was for failing to correctly label each underground storage
tank, which several witnesses testified was PSI‘s responsibility.

9
in the Rio Grande Valley that ―dealt with providing water and sewer services to poor

communities.‖ Nevertheless, at the time of trial, Head still operated under a TNRCC

enforcement order.12

G. Remediation of the Leak

Through remediation efforts, approximately 22,000 gallons of diesel fuel were

recovered from underground, drainage ditches, and other places. In addition, more

than 39,000 gallons of groundwater was extracted because the water contained traces

of diesel fuel. However, the remediation of the site was an ongoing endeavor. In

December 2005, more than four years after the initial leak, Head hired Ranger

Environmental Services (―Ranger‖) to conduct a compliance audit and to ensure that

Head‘s paperwork regarding fuel inventory levels was being done correctly. At this

time, Ranger was not performing any remediation work for Head. Instead, Ranger

checked various monitors to ensure that the remediation efforts were in compliance with

TNRCC regulations. Airey was in charge of the audit, and when he checked the

monitors, he noticed that there was ―[a] lot of diesel fuel in the ground.‖ Airey found that

there was still about 10.5 feet of diesel fuel on the groundwater table. Airey testified

that ERM and PSI were responsible for cleaning up the released diesel fuel at this time.

Upon Airey‘s discovery, Head hired Ranger to complete the clean-up of the leak.

At the time of trial on this matter, in October 2008, the site has not been completely

remediated, though the TNRCC remediation order remains in effect. Airey estimated

12
One of Head‘s attorneys, Donald Grissom, testified that he handled the TNRCC‘s enforcement
action and that Head incurred $42,925 in attorney‘s fees, plus $2,800 in expenses. Grissom noted that
his hourly fee of $250 was reasonable for this service in Travis and Hidalgo counties. Grissom
referenced Travis county because several administrative hearings took place in Austin, Texas, which is
the county seat of Travis county. See Tex. State Hist. Assoc., Austin, TX (Travis County), available at
http://www.tshaonline.org/handbook/online/articles/hda03 (last visited Mar. 30, 2011). In fact, Grissom
acknowledged that about 90% of the work done on the enforcement action took place in Austin.

10
that the total cost to complete the remediation to the satisfaction of the TRNCC would

be $509,509.

H. Alternative Theories About the Cause of the Leak and Titeflex’s Involvement

Titeflex‘s expert witness, Bruce W. Pinkston, Ph.D, estimated that the leak first

occurred in March 2001, and continued consistently until discovered in November 2001.

Dr. Pinkston opined that the leak was slow and probably constituted about five gallons

per hour. One of Head‘s expert witnesses, Sullivan Curran, a consultant and executive

director of the Fiberglass Tank and Pump Institute, testified that the cause of the leak

was PSI‘s improper installation of a union at a shear valve, not the flex connector.

Relying on the deposition testimony of Octavio Pruneda, a technician for PSI, Curran

asserted that PSI improperly cross-threaded the union in question, which caused a

small leak in the system.13 In fact, Pruneda replaced a galvanized union at one of the

dispensers after confirming the presence of a leak. Curran also testified that PSI had

improperly designed the system using pipes that were too small in diameter for the ATG

system to work properly. Curran noted that PSI used two-inch pipes for the system

when it should have used three-inch pipes. The system has a high-powered, five-

horsepower pump that is used to push fuel from the tanks to the dispensers. Because

the pipes were smaller than what industry standards require when integrated with a five-

horsepower pump, the fuel pressure in the system was always high and never ―dropped

below ten PSI [pounds per square inch]‖ to allow for the ATG system to detect whether

there was a leak in the system.

13
Pruneda also noticed that the system had two boots with holes and that there were kinked
hoses in the system, which allowed for the fuel pressure to increase. Pruneda testified that the effect of
too much pressure would be ―the flex hose can go bad. You would have a leak.‖

11
 Roy Rodriguez, PSI‘s crew chief during the initial 2001 clean-up of the leak,

testified that PSI dug up the system and tested the system‘s flex hoses, which did not

reveal any leaks. Rodriguez denied taking any portion of the system out of the ground

for testing. Specifically, Rodriguez did not recall anyone removing a flex connector from

the ground in November 2001, and he did not recall Barron being present at the truck

stop in November 2001, testing the flex connector, or putting the flex connector in the

back of his truck.

Despite these allegations, PSI continually asserted that the flex connector was

the cause of the leak. Barron testified that he was present at the truck stop during the

initial stages of the investigation and clean-up in November 2001. Barron recalled

removing the alleged faulty flex connector and placing it in the back of his truck so that it

could be tested. The flex connector was never seen again; however, Barron made

handwritten notes, took pictures of the flex connector, and repeatedly testified that the

flex connector was manufactured by Titeflex, even though the original system plans did

not call for a Titeflex flex connector to be implemented in the system. Furthermore,

Barron repeatedly certified to the TNRCC that the cause of the leak was a Titeflex flex

connector.

I. The Lawsuits

On February 13, 2006, Head filed suit against PSI for breach of warranty of

fitness, breach of implied warranty of good and workmanlike services, negligence, and

fraudulent concealment. Because the lawsuit was filed more than four years after the

leak was discovered in November 2001, Head pleaded the discovery rule. On October

5, 2006, PSI filed a third-party action against Titeflex, claiming contribution and

12
indemnity. PSI claimed that Titeflex had manufactured the faulty flex connector that

caused the leak and subsequently went missing. PSI‘s contribution claim was premised

on a strict liability cause of action, and PSI claimed that all damages that Head may

have sustained were attributable to the alleged faulty flex connector. Based on the

allegations made by PSI in its third-party action, Head amended his original petition to

include Titeflex as a defendant. Head specifically noted that ―Titeflex is strictly liable for

damages caused by the defective flex connector.‖ Shortly thereafter, Titeflex answered

both PSI and Head‘s third-party actions and asserted various affirmative defenses.

In the meantime, PSI filed a counterclaim against Head on March 20, 2007,

asserting that Head had breached numerous agreements by failing to pay PSI

$57,527.49 for work and materials provided to the truck stop.14 Later, Titeflex filed a

motion for summary judgment, urging that there was no evidence that the flex connector

that PSI asserted was the cause of the leak had been manufactured by Titeflex.

Essentially, Titeflex argued that there was no evidence whatsoever to show that it was

at fault for the leak. The trial court set a date for the hearing on Titeflex‘s motion for

summary judgment; however, because both Head and PSI argued that they needed

more time to conduct discovery, especially considering that the alleged faulty flex

connector could not be found, the trial court continued the hearing. 15

In its designation of expert witnesses filed on August 20, 2007, PSI identified one

expert, Bastiaan E. Cornelissen, Ph.D, P.E., to opine that all the damages sustained as

a result of the leak were attributable to the alleged faulty flex connector. However, after

14
Head acknowledged that PSI had submitted invoices for the amount requested in its
counterclaim; however, Head refused to pay the invoices because he believed that PSI was at fault for
causing the leak.
15
Ultimately, Titeflex‘s motion for summary judgment was denied by the trial court.

13
several notices were provided, Dr. Cornelissen never showed up for his deposition.

Nevertheless, PSI continued to blame the leak on the flex connector that was

purportedly manufactured by Titeflex.

On January 4, 2008, Titeflex filed a motion for sanctions, alleging that PSI had

spoliated evidence by failing to produce the alleged faulty flex connector. In its motion,

Titeflex referenced deposition testimony provided by Barron, whereby he admitted that

PSI tested several flex connectors incorporated into the system, removed the alleged

faulty flex connector, and subsequently lost the allegedly faulty flex connector, thus

making it impossible to determine if the flex connector was defective and whether

Titeflex had indeed manufactured the part. Titeflex sought to exclude all evidence

tending to show that any product manufactured or sold by Titeflex was defective, and it

requested an instruction to the jury on spoliation. Head also filed a motion for sanctions

against PSI, arguing that PSI had intentionally destroyed crucial evidence, i.e., the

alleged faulty flex connector. Head requested that the trial court consider the full range

of sanctions, up to and including the striking of PSI‘s pleadings and rendering a default

judgment.

PSI responded to both Titeflex and Head‘s motions for sanctions by blaming

Head‘s delay in bringing suit and PSI‘s engineering consulting firm and lab for the loss

of the flex connector.16 PSI argued that it had made numerous efforts to recover the

flex connector, even though more than six years had elapsed since the flex connector

16
In support of its contentions in its response to Titeflex and Head‘s motions for sanctions, PSI
included the affidavit of Elizabeth Neally, an attorney who previously worked on this case, who averred
that she took possession of the flex connector from Barron on or about February 2002. She then sent the
flex connector to David Hendrix, one of PSI‘s consulting experts, ―to perform a non-evasive examination
of the flex connector[,] the subject of this suit.‖ In September 2002, Neally received an invoice from
Hendrix regarding the examination of the flex connector; however, Hendrix apparently never returned the
flex connector to Neally, nor did he respond to PSI‘s requests for the return of the flex connector.

14
was allegedly removed from Head‘s underground storage tank system. PSI further

argued that it did not deliberately destroy evidence; that it had not engaged in culpable

or negligent conduct with respect to the flex connector; and that it did not have a duty to

keep the flex connector once the limitations period expired. As a result, PSI did not

believe that sanctions or a spoliation instruction was warranted.

While Titeflex‘s motion for summary judgment and the motions for sanctions

were pending, Head non-suited all his claims against Titeflex on March 7, 2008, based

on the lack of evidence demonstrating that Titeflex had manufactured the flex connector

that PSI contended was the cause of the leak. PSI, however, continued to maintain its

indemnity claims against Titeflex. PSI later filed its first amended answer, defenses,

and cross-claim. In this filing, PSI generally denied all of Head‘s claims; argued that

Head was contributorily negligent in causing the leak; designated Titeflex, among

others, as responsible third parties under chapter 82 of the civil practice and remedies

code, see TEX. CIV. PRAC. & REM. CODE ANN. §§ 82.001-.008 (West 2011); and asserted

various affirmative defenses, including statute of limitations.

In response, Titeflex filed a counterclaim against PSI, contending that it owed

PSI no duty to indemnify. Titeflex further contended that PSI was an assembler of a

finished product and that Titeflex was an innocent seller under chapter 82 of the civil

practice and remedies code, see id.; thus, PSI was obligated to indemnify Titeflex for

―all past and future costs of court, reasonable expenses, and reasonable and necessary

attorney‘s fees which were expended in defense of this action and in prosecution of this

demand for indemnity.‖ Titeflex also argued that there was no evidence indicating that

15
a Titeflex flex connector was used in Head‘s underground storage tank system. Titeflex

also re-urged its request for sanctions against PSI.

Head, meanwhile, amended his petition several times. In his sixth amended

petition, his live pleading, Head asserted claims against PSI for breach of implied

warranty of good and workmanlike services, negligence, fraud, breach of fiduciary duty,

fraudulent concealment, and breach of contract. Head also alleged that PSI was strictly

liable for the defective ATG system, which ―did not work at the system‘s required

capacity.‖ Head requested damages for: (1) remediation; (2) TNRCC fines and

penalties; (3) lost revenues as a result of the lines being shut down due to system

failures; (4) the cost of replacing the failed system; and (5) the cost of replacing the

20,000 gallons of lost diesel fuel at $1.50 per gallon. In addition, Head asked for

attorney‘s fees and uncapped punitive damages against PSI for allegedly ―us[ing]

workers who were not qualified for [the] work that was performed, regularly falsif[ying]

work description sheets and intentionally cover[ing] up the real causes of the leak and

resulting damages.‖ Head further alleged that PSI violated section 32.46 of the Texas

Penal Code for securing the execution of documents by deception. See TEX. PENAL

CODE ANN. § 32.46 (West Supp. 2010). With respect to section 32.46 of the penal code,

Head argued that PSI: (1) induced Carpenter to sign documents that were sent to the

TNRCC, which falsely stated that the flex connector was the sole cause of the leak; and

(2) withheld documents and evidence from the TNRCC and Head to cover up the true

causes of the leak. In response to PSI‘s limitations defense, Head asserted that his

causes of action were tolled by the discovery rule.

16
 On August 12, 2008, PSI non-suited its claims against Titeflex. However, Titeflex

continued to seek costs associated with the matter pursuant to Texas Rule of Civil

Procedure 162. See TEX. R. CIV. P. 162. Shortly before trial commenced, the trial court

conducted a hearing on the pending motions for sanctions. After hearing arguments

from all parties, the trial court struck PSI‘s affirmative defenses, including its limitations

defense, and ruled that a spoliation instruction would be given to the jury. The parties‘

request for attorney‘s fees was carried to the end of the trial. The trial court also denied

various motions that PSI had filed, including a motion to strike Head‘s third, fourth, fifth,

and sixth amended petitions, and a motion to dismiss or sever Titeflex‘s counterclaims.

In October 2008, this matter proceeded to trial, which ultimately lasted for seven

weeks. At the conclusion of the evidence, the jury found in favor of Head and Titeflex.

In particular, the jury ruled in favor of Head‘s negligence, breach of contract, fraud,

breach of warranty, and breach of fiduciary duty claims. 17 With respect to Titeflex, the

jury concluded that PSI was a manufacturer; that Titeflex was an innocent seller within

the context of chapter 82 of the civil practice and remedies code; and that Titeflex was

entitled to indemnity from PSI, thus allowing for the recovery of costs, expenses, and

attorney‘s fees associated with the trial of this matter. Head elected to recover on the

theories of breach of contract, breach of implied warranty, fraud, and breach of fiduciary

duty. Head was awarded: (1) $818,142.38 in actual damages and $283,178.88 in pre-

judgment interest for a sum total of $1,131,321.26; and (2) $91,500 in attorney‘s fees.

Titeflex was awarded: (1) $382,334 in attorney‘s fees and $68,519.62 in expenses for a

sum total of $450,853.62; and (2) $12,393.55 in court costs. The jury also concluded

17
Regarding Head‘s negligence claim, the jury apportioned PSI‘s fault at 75%, with the remaining
25% apportioned to Head.

17
that Head breached agreements with PSI for materials and services provided for the

clean-up of the truck stop; however, according to the jury, Head was excused from

complying with the agreements.18

The trial court signed the final judgment based on the jury‘s findings on January

13, 2009. Various post-judgment motions were filed, including motions for judgment

non-obstante verdicto, to disregard the jury‘s findings, for a new trial, to modify the

judgment, and for remittitur. Each of these motions was denied by the trial court. PSI

timely filed its notice of appeal on April 9, 2009. See TEX. R. APP. P. 26.1(a). On April

28, 2009, PSI filed a supersedeas bond in the registry of the trial court in the amount of

$1,037,737, or fifty percent of PSI‘s net worth as expressed by Barron. 19 See id. at R.

24.2(a)(1)(A); see also TEX. CIV. PRAC. & REM. CODE ANN. § 52.006(b)(1) (West 2008).

This appeal followed.

II. THE TRIAL COURT’S SANCTIONS

By its first issue, PSI challenges the trial court‘s imposition of sanctions. PSI

characterizes the trial court‘s sanctions as death penalty sanctions and specifically

argues that they violate the test set forth in Transamerican Natural Gas Corporation v.

Powell, 811 S.W.2d 913 (Tex. 1991). PSI contends that there is no relationship

between the conduct, the offender, and the sanction and that the sanctions were

excessive. Head responds that the trial court‘s sanctions do not violate the

18
Despite concluding that Head was excused from complying with his agreements with PSI, the
jury determined that PSI was entitled to $57,527.49 in compensation from Head.
19
In an affidavit supporting the filing of a supersedeas bond on behalf of PSI, Barron averred that
PSI has $13,200,367.27 in assets and $11,124,894.83 in liabilities and capital; thus, PSI‘s net worth is
$2,075,472.44. Half of PSI‘s net worth equals approximately $1,037,737.

18
Transamerican standard because there is a relationship between PSI‘s conduct and the

sanction imposed and because the sanctions were not excessive.

Specific as to the trial court‘s spoliation instruction, PSI argues that it had no duty

to retain the flex connector longer than the applicable limitations period; that the loss of

the flex connector did not cause any prejudice; and that the instruction ―nudged the jury

against PSI.‖ Head counters by arguing that PSI had a duty to preserve the flex

connector because PSI knew that a lawsuit would likely arise from the incident and that

the flex connector was a key piece of evidence. He asserts that PSI‘s failure to

preserve the flex connector prejudiced Head ―because he was unable to determine with

certainty liability, causation[,] and fault.‖

A. Standard of Review and Applicable Law

We review a trial court‘s imposition of sanctions under an abuse of discretion

standard. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004). A trial court abuses its

discretion when its ruling is arbitrary and unreasonable and without reference to any

guiding rules and principles. Id. at 838-39. In conducting our review, we are not limited

to a review of the ―sufficiency of the evidence‖ to support the trial court‘s findings; rather,

we make an independent inquiry of the entire record to determine if the trial court

abused its discretion by imposing the sanction. Daniel v. Kelley Oil Corp., 981 S.W.2d

230, 234 (Tex. App.–Houston [1st Dist.] 1998, pet. denied) (op. on reh‘g). Thus, we are

not limited to considering only the specific violation committed; we may consider other

matters that have occurred during the litigation. Downer v. Aquamarine Operators, Inc.,

701 S.W.2d 238, 241 (Tex. 1985); see Hartford Acc. & Indem. Co. v. Abascal, 831

S.W.2d 559, 561 (Tex. App.–San Antonio 1992, orig. proceeding).

19
 Rule of civil procedure 215.2 allows a trial court to enter ―just‖ sanctions for a

party‘s failure to comply with a discovery order or request. TEX. R. CIV. P. 215.2; see

Cire, 134 S.W.3d at 839; Response Time, Inc. v. Sterling Commerce (N. Am.), Inc., 95

S.W.3d 656, 660 (Tex. App.–Dallas 2002, no pet.). Among the prescribed sanctions

contained in rule 215.2 are: (1) an order charging expenses for discovery and court

costs; and (2) the striking of pleadings and defenses. TEX. R. CIV. P. 215.2(b)(2), (b)(4)-

(5). Any sanction that adjudicates a claim or precludes the presentation of the merits of

the case constitutes a ―death penalty‖ sanction. See Chrysler Corp. v. Blackmon, 841

S.W.2d 844, 845 (Tex. 1992); see also De Los Santos v. Johnson, No. 13-07-00502-

CV, 2008 Tex. App. LEXIS 6841, at *8 (Tex. App.–Corpus Christi Aug. 28, 2008, pet.

denied) (mem. op.); In re Fina Oil & Chem. Co., No. 13-98-00640-CV, 1999 Tex. App.

LEXIS 1751, at **36-37 (Tex. App.–Corpus Christi Mar. 11, 1999, orig. proceeding) (not

designated for publication) (noting that the striking of a party‘s affirmative defense as a

sanction precludes the defendant from going to trial on the merits of that defense and,

thus, should be tested according to the standards applied to the striking of any other

pleading).

The Supreme Court of Texas in Transamerican developed a two-part test for

courts to apply when determining whether a sanction is ―just.‖ 811 S.W.2d at 917.

First, there must be a direct nexus among the offensive conduct, the offender, and the

sanction imposed. Spohn Hosp. v. Mayer, 104 S.W.3d 878, 882 (Tex. 2003) (citing

Transamerican, 811 S.W.2d at 917). A ―just‖ sanction must be directed against the

abuse and toward remedying the prejudice caused to the innocent party, and the

sanction should be visited upon the offender. Id.

20
 Second, ―just‖ sanctions must not be excessive. Transamerican, 811 S.W.2d at

917. That is, a sanction imposed for discovery abuse should be no more severe than

necessary to satisfy its legitimate purposes, which includes securing compliance with

discovery rules, deterring other litigants from similar misconduct, and punishing

violators. Id.; see Spohn Hosp., 104 S.W.3d at 882; Blackmon, 841 S.W.2d at 849. For

this reason, the supreme court requires courts to consider less stringent sanctions and

whether such lesser sanctions would fully promote compliance. Transamerican, 811

S.W.2d at 917; see Cire, 134 S.W.3d at 839; Spohn Hosp., 104 S.W.3d at 882.

Discovery sanctions cannot be used to adjudicate the merits of a party‘s claims

or defenses, unless a party‘s hindrance of the discovery process justifies a presumption

that the party‘s claims or defenses lack merit. Transamerican, 811 S.W.2d at 918.

However, if a party refuses to produce material evidence, despite the imposition of

lesser sanctions, the trial court may presume that the asserted claim or defense lacks

merit and dispose of it. Id. Sanctions which are so severe as to preclude presentation

of the merits of the case should not be assessed absent a party‘s flagrant bad faith or a

party‘s callous disregard for the responsibilities of discovery under the rules. Id. (citing

Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642-43 (1976) (per

curiam)).

A ―hearing on the motion for sanctions [is] akin to a nonjury trial,‖ in which ―the

trial court is the judge of the credibility of the witnesses and of the weight to be given

their testimony, since the judge has the opportunity to observe the demeanor of the

witnesses on the stand and may believe all, none, or part of the witnesses‘ testimony.‖

―In determining whether a trial court has abused its discretion [in a sanctions appeal],

21
we are required to view the evidence in the light most favorable to the trial court‘s action

and to indulge every legal presumption in favor of the judgment.‖ Vaughn v. Tex.

Employment Comm’n, 792 S.W.2d 139, 143 (Tex. App.–Houston [1st Dist.] 1990, no

writ) (citing Parks v. U.S. Home Corp., 652 S.W.2d 479, 485 (Tex. App.–Houston [1st

Dist.] 1983, writ dism‘d)). Further, reasonable ―inferences may be drawn from actual

facts proved‖ by the trier of the facts. Beazley v. McEver, 238 S.W. 949, 952 (Tex. Civ.

App.–Dallas 1922, no writ).

A. The Trial Court’s Spoliation Instruction

"A spoliation instruction is an instruction given to the jury outlining permissible

inferences they may make against a party who has lost, altered, or destroyed evidence."

Tex. Elec. Coop. v. Dillard, 171 S.W.3d 201, 208 (Tex. App.–Tyler 2005, no pet.) (citing

Brewer v. Dowling, 862 S.W.2d 156, 159 (Tex. App.–Fort Worth 1993, writ denied)).

The use of a spoliation instruction is generally limited to two circumstances: (1) the

deliberate destruction of relevant evidence; and (2) the failure of a party to produce

relevant evidence or to explain its non-production. Wal-Mart Stores, Inc. v. Johnson,

106 S.W.3d 718, 721 (Tex. 2003) (citing Anderson v. Taylor Publ'g Co., 13 S.W.3d 56,

61 (Tex. App.–Dallas 2000, pet. denied)).20 Under the first circumstance, a party who

has deliberately destroyed evidence is presumed to have done so because the
20
In Wal-Mart Stores, Inc. v. Johnson, the supreme court stated that:

Evidence may be unavailable for discovery and trial for a variety of reasons. Evidence
may be lost, altered or destroyed willfully and in bad faith or it may be lost for reasons
completely innocent. Sometimes, lost evidence may be easily replicated, or it may be so
marginal that it has little or no effect on the outcome of the case. On other occasions, the
loss or destruction of evidence may seriously impair a party‘s ability to present its case.
A trial judge should have discretion to fashion an appropriate remedy to restore the
parties to a rough approximation of their positions if all evidence were available. These
remedies must generally be fashioned on a case-by-case basis.

106 S.W.3d 718, 721 (Tex. 2003).

22
evidence was unfavorable to its case. Id. at 721-22 (citing Williford Energy Co. v.

Submergible Cable Servs., Inc., 895 S.W.2d 379, 389-90 (Tex. App.–Amarillo 1994, no

writ); Brewer, 862 S.W.2d at 159). Under the second circumstance, the presumption

arises because the party controlling the missing evidence cannot explain its failure to

produce it. Id. at 722 (citing Watson v. Brazos Elec. Power Coop., Inc., 918 S.W.2d

639, 643 (Tex. App.–Waco 1996, writ denied)). "The presumption does not apply when

documents are merely lost." Cresthaven Nursing Residence v. Freeman, 134 S.W.3d

214, 227 (Tex. App.–Amarillo 2003, no pet.) (citing Williford Energy Co., 895 S.W.2d at

389-90); Brewer, 862 S.W.2d at 160. A trial court may be guided by the following three

factors in determining whether a spoliation presumption is justified: (1) whether there

was a duty to preserve evidence; (2) whether the alleged spoliator either negligently or

intentionally spoliated evidence; and (3) whether the spoliation prejudiced the

nonspoliator's ability to present its case or defense. Trevino v. Ortega, 969 S.W.2d 950,

954-55 (Tex. 1998) (Baker, J., concurring)21; Whirlpool Corp. v. Camacho, 251 S.W.3d

88, 102 (Tex. App.–Corpus Christi 2008), rev'd on other grounds, 298 S.W.3d 631 (Tex.

2009).

Before any failure to produce material evidence may be viewed as discovery

abuse, the opposing party must establish that the non-producing party had a duty to

21
In Trevino v. Ortega, Justice Baker noted that:

Because parties have a duty to reasonably preserve evidence, it is only logical that they
should be held accountable for either negligent or intentional spoliation. While allowing a
court to hold a party accountable for negligent as well as intentional spoliation may
appear inconsistent with the punitive purpose of remedying spoliation, it is clearly
consistent with the evidentiary rationale supporting it because the remedies ameliorate
the prejudicial effects resulting from the unavailability of evidence. In essence, it places
the burden of the prejudicial effects upon the culpable spoliating party rather than the
innocent nonspoliating party.

969 S.W.2d 950, 957 (Tex. 1998) (Baker, J., concurring) (internal citation omitted).

23
preserve the evidence in question. Dillard, 171 S.W.3d at 209 (citing Johnson, 106

S.W.3d at 722). There must be a sufficient foundational showing that the party who

destroyed the evidence had notice both of the potential claim and of the evidence‘s

potential relevance thereto. Id. (citing Johnson, 106 S.W.3d at 722). An objective test

for anticipation of litigation is whether a reasonable person would conclude from the

severity of the accident and other circumstances surrounding it that there was a

substantial chance for litigation. Id. (citing Johnson, 106 S.W.3d at 722). ―A party

should not be able to subvert the discovery process and the fair administration of justice

simply by destroying evidence before a claim is actually filed.‖ See Trevino, 969

S.W.2d at 955 (Baker, J., concurring).

In this case, the trial court included the following spoliation instruction in the

charge:

You, the jury, are instructed that Petroleum Solutions, Inc.
destroyed, lost, or failed to produce to this Court material evidence that by
law should have been produced as evidence for your deliberations. You
are further instructed you may, but are not required to presume this
evidence is unfavorable to Petroleum Solutions, Inc.

PSI argues that it did not have a duty to preserve evidence ad infinitum. Specifically,

PSI contends that it did not have to preserve the flex connector past November 2005,

the date in which PSI asserts the limitations period expired. PSI‘s argument, however,

is belied by Barron‘s testimony and Neally‘s affidavit. In his testimony, Barron stated

that the flex connector was the cause of the leak and that it was removed from the

underground storage tank system by PSI employees and placed in the back of Barron‘s

pickup truck in November 2001. Moreover, Barron admitted that he anticipated that he

would be sued for the leak when he arrived at the scene of the November 2001 incident.

24
Carpenter consented to Barron removing the flex connector from the premises for

safekeeping and possible testing. Neally averred that Barron gave the flex connector to

her in February 2002. She then sent the flex connector to Hendrix, PSI‘s expert, for

testing. Hendix examined the flex connector and sent PSI a bill for the examination in

September 2002. The flex connector was never returned, and PSI alleges that it was

unable to contact Hendrix to instruct him to return the flex connector.

Based on Barron and Neally‘s statements alone, it is clear that since February

2002, PSI failed to preserve the flex connector. Even if we were to accept PSI‘s

argument that it only had a duty to preserve the flex connector until November 2005, the

evidence is clear that PSI had not done so since turning the flex connector over to one

of its agents, Neally, in February 2002. Moreover, although PSI argues that the flex

connector was lost, a reasonable person could conclude that PSI failed to preserve the

evidence given the fact that Hendrix conducted an examination of the flex connector

and demanded payment for the examination, yet failed to preserve the evidence once

the examination was complete. The foregoing undermines any argument that the flex

connector was merely lost.

Barron testified and PSI represented throughout the litigation of this case that the

cause of the leak was the flex connector. For the majority of the litigation, PSI

represented that the flex connector was manufactured by Titeflex. PSI‘s failure to

preserve the flex connector significantly prejudiced both Head and Titeflex. Head was

unable to determine with certainty liability, causation, and fault for the enormous leak of

diesel fuel. Head was forced to rely solely on PSI‘s determination of the cause of the

leak, the licensed contractor who originally installed the underground storage tank and

25
ATG systems and whose president anticipated being sued once the leak was

discovered. Head was precluded from obtaining a second opinion about the cause of

the leak from another licensed contractor and was induced to file suit against Titeflex

because of PSI‘s allegations. Cordova testified that it would have been a violation of

state regulations if Head had independently conducted an investigation of the

underground storage tank system without the assistance of a licensed contractor like

PSI. Thus, Head was at PSI‘s mercy.

Titeflex was also prejudiced by PSI‘s failure to preserve the flex connector

because the part itself was the basis of Titeflex‘s liability. Barron testified that he

created handwritten notes stating that the flex connector was manufactured by Titeflex,

yet he failed to produce those notes. In addition, Barron‘s photographs of the flex

connector failed to demonstrate that the flex connector had indeed been manufactured

by Titeflex. Had Head and Titeflex been given the opportunity to examine the flex

connector, they likely would have been able to easily determine whether Titeflex was

the manufacturer of the part and whether the part was defective. Moreover, had PSI

produced the flex connector, it is very likely that Titeflex would not have been involved

in this lawsuit from the beginning. Essentially, the flex connector was a key piece of

evidence to both Head and Titeflex, and PSI‘s failure to produce the part prejudiced

both parties significantly.

Based on the foregoing, we conclude that a reasonable person would have

deduced from the severity of the 20,000-gallon diesel fuel leak and other circumstances

surrounding the leak that there was a substantial chance for litigation, especially

considering Barron admitted as much at trial. See Johnson, 106 S.W.3d at 722; see

26
also Dillard, 171 S.W.3d at 209. Further, because the flex connector was a central

piece of evidence in determining the actual cause of the leak and who was at fault, it

was reasonable to conclude that PSI was on notice of its potential relevance. See

Johnson, 106 S.W.3d at 722; see also Dillard, 171 S.W.3d at 209. We further conclude

that Head and Titeflex both demonstrated that they were significantly prejudiced by

PSI‘s failure to produce the flex connector. In any event, PSI blames its attorneys,

insurance company, and Hendrix for its inability to produce the flex connector.

A spoliator can defend against an assertion of negligent or
intentional destruction by providing other explanations for the destruction.
For example, if the destruction of the evidence was beyond the spoliator‘s
control or done in the ordinary course of business, the court may find that
the spoliator did not violate a duty to preserve evidence. Importantly
though, when a party’s duty to preserve evidence arises before the
destruction or when a policy is at odds with a duty to maintain records, the
policy will not excuse the obligation to preserve evidence.

Trevino, 969 S.W.2d at 957 (Baker, J., concurring) (emphasis added). As we have

explained above, PSI had a duty to preserve the flex connector. The fact that PSI was

not requested to produce the flex connector until several years later when the lawsuit

was filed is inconsequential because the evidence establishes that the part was missing

since February 2002, which was well within the governing limitations period. See id.

B. The Trial Court’s Striking of PSI’s Affirmative Defenses

With regard to the trial court‘s striking of PSI‘s affirmative defenses, PSI asserts

that the sanctions violate the Transamerican standard and are excessive. First, PSI

states that the trial court failed to articulate a connection between the alleged

spoliation—the failure to produce the alleged faulty flex connector—and the striking of

PSI‘s affirmative defenses. In support of this statement, PSI, once again, suggests that

it did not have a duty to preserve the evidence once the limitations period expired while

27
citing to our opinion in Thomas v. State. 226 S.W.3d 697, 710 (Tex. App.–Corpus

Christi 2007, pet. dism‘d) (stating that ―the primary purpose of a statute of limitations—

ensuring that a defendant is placed on notice of claims within a reasonable time, when

evidence and witnesses are available . . . ‖). However, as we have previously

concluded, PSI had a duty to preserve the alleged faulty flex connector and PSI‘s

argument is belied by the fact that the part has been lost since February 2002, a date

which was clearly within the limitations period that PSI argues applies. PSI withheld the

production of evidence that was crucial to this case and engaged in numerous actions,

as we detail later, designed to minimize its fault in this matter. In addition, PSI moved

for summary judgment based upon limitations, even though liability in this case centered

on PSI‘s explanation for the cause of the leak—the alleged faulty flex connector—and

PSI failed to produce the part.

Second, PSI contends that it should not be punished because its expert lost the

flex connector. See In re Barnes, 956 S.W.2d 746, 748 (Tex. App.–Corpus Christi

1997, orig. proceeding) (―Respondent‘s order extinguished Relators‘ lawsuit because

their counsel did not file verified responses to interrogatories when he had represented

to Respondent and opposing counsel that the verifications would be forthcoming. This

order had the effect of punishing Relators for the conduct of their counsel. . . . There

was no evidence . . . that Relators themselves were doing anything to thwart the

discovery process.‖); see also Richmond Condos. v. Skipworth Commercial Plumbing,

Inc., 245 S.W.3d 646, 662 (Tex. App.–Fort Worth 2008, pet denied) (holding that, based

on the facts in the case, a sanction against the client ―would be unfair and improper

28
because it would have punished [defendant] for a transgression that it did not commit

and for which it bore no responsibility‖).

With regard to this contention, we first note that the Skipworth Commercial

Plumbing court, citing to Transamerican, stated that ―a lawyer cannot shield his client

from sanctions; a party must bear some responsibility for its counsel‘s discovery abuses

when it is or should be aware of counsel‘s conduct and the violation of discovery rules.‖

245 S.W.3d at 661 (citing Transamerican, 811 S.W.2d at 917). Therefore, we disagree

with PSI‘s intimation that the actions of its lawyers in having the flex connector tested

shielded PSI from all sanctions. The record reflects that Barron was aware of the fact

that Neally gave the flex connector to Hendrix for testing and that Hendrix was unable to

produce the flex connector since February 2002. Therefore, PSI cannot credibly assert

that it was unaware of the non-production of the flex connector and simply place blame

at the feet of its lawyers. Next, and perhaps more importantly, we note that in

considering the propriety of a trial court‘s sanctions, we are not limited to only

considering the specific violation committed; we may consider other matters that

occurred during the litigation. See Downer, 701 S.W.2d at 241; see also Abascal, 831

S.W.2d at 561. PSI has engaged in repeated attempts to minimize its fault in this

matter, as evidenced by: (1) PSI sending Morris to instruct Obregon to re-create

inventory records using misleading calculations to show that Head was not diligent in

detecting the leak; (2) Barron testifying that he removed the alleged faulty flex connector

from the premises, while Rodriguez, the crew-chief, denying that he saw Barron do such

a thing; (3) blaming the cause of the leak on Titeflex, the alleged manufacturer of the

flex connector, even though no evidence existed to implicate Titeflex; and (4)

29
Corneilissen failing to attend his deposition when he was the sole expert designated to

opine that the cause of the leak was the flex connector. We believe that PSI engaged in

these actions because Barron anticipated being sued once he was informed about the

leak.

Given these actions, we cannot say that the trial court abused its discretion in

concluding that PSI, rather than its lawyers, should be sanctioned. See Mayer, 104

S.W.3d at 882 (noting that a ―just‖ sanction should be designed to remedy the prejudice

caused to the innocent party and visited upon the offender). Moreover, based on this

evidence, we believe that there is a direct relationship between the striking of PSI‘s

affirmative defense and PSI‘s numerous deceptions in this case. See Transamerican,

811 S.W.2d at 917.

Finally, PSI asserts that the sanctions imposed were excessive when considering

that a spoliation instruction was also given and that the trial court should have

considered lesser sanctions. PSI is correct in stating that the supreme court requires

that a trial court consider less stringent measures before settling on severe sanctions.

See Mayer, 104 S.W.3d at 883 (citing Transamerican, 811 S.W.2d at 917). However,

―[c]ase determinative sanctions may be imposed in the first instance only in exceptional

cases when they are clearly justified and it is fully apparent that no lesser sanctions

would promote compliance with the rules.‖ GTE Comm’cns Sys. Corp. v. Tanner, 856

S.W.2d 725, 729 (Tex. 1993) (orig. proceeding); Transamerican, 811 S.W.2d at 919;

see In re Zenergy, Inc., 968 S.W.2d 1, 9 (Tex. App.–Corpus Christi 1997, orig.

proceeding); Marshall v. Ryder Sys., Inc., 928 S.W.2d 190, 197 (Tex. App.–Houston

[14th Dist.] 1996, writ denied). In fact, ―[s]anctions which are so severe that they

30
preclude presentation on the merits should not be assessed absent a party‘s bad faith

or counsel‘s flagrant disregard for the responsibilities of discovery under the rules.‖ In

re Zenergy, Inc., 968 S.W.2d at 9; see Blackmon, 841 S.W.2d at 849. Ultimately, as

described by the Transamerican court, ―[t]he punishment should fit the crime.‖ 811

S.W.2d at 917.

Based on the aforementioned acts engaged in by PSI, we do not believe that the

imposition of lesser sanctions would have promoted compliance with the discovery

rules. See Tanner, 856 S.W.2d at 729; Transamerican, 811 S.W.2d at 919; In re

Zenergy, Inc., 968 S.W.2d at 9; Marshall, 928 S.W.2d at 197. In fact, to date, PSI

cannot produce the flex connector which it alleges is the cause of the leak, and PSI has

not adequately explained what lesser sanctions could have been imposed to promote

compliance. Considering all of the circumstances in this case, we conclude that the trial

court was justified in concluding that PSI‘s actions amounted to bad faith and warranted

the imposition of more severe sanctions. See Blackmon, 841 S.W.2d at 849; In re

Zenergy, Inc., 968 S.W.2d at 9; see also Downer, 701 S.W.2d at 241; Abascal, 831

S.W.2d at 561. Furthermore, considering all of the evidence in the light most favorable

to the trial court‘s judgment, we cannot say that the trial court abused its discretion in

imposing sanctions and in issuing the spoliation instruction. See Cire, 134 S.W.3d at

838; Trevino, 969 S.W.2d at 953 (stating that trial courts have broad discretion to

sanction for evidence spoliation, including the imposition of death penalty sanctions);

Daniel, 981 S.W.2d at 234; see also Vaughn, 792 S.W.2d at 143; Parks, 652 S.W.2d at

485. In essence, we conclude that the sanctions imposed and the spoliation instruction

31
given by the trial court ―fit the crime‖ and were not excessive. See Transamerican, 811

S.W.2d at 917.

The dissent states that the trial court‘s sanction of striking PSI‘s affirmative

defenses was so severe as to violate the Transamerican standard. See id. However,

we note that the trial court‘s sanctions did not preclude PSI from challenging liability on

Head‘s claims by presenting witnesses and evidence in support thereof. Despite the

sanctions, Head was still required to prove his causes of actions at trial. Thus, this was

not an instance where the trial court struck all of the pleadings of the spoliator, including

the spoliator‘s answer, and conducted a trial solely on damages. As such, we believe

that the sanctions imposed were of a lesser nature than those that could have been

imposed. See id. at 918; see also TEX. R. CIV. P. 215.2(b)(5) (allowing the trial court to

strike pleadings or parts thereof, dismiss actions with or without prejudice, or render a

default judgment for discovery abuses). Therefore, based on the foregoing, we overrule

PSI‘s first issue.

III. LIMITATIONS

In its second issue, PSI argues that Head‘s claims were barred by limitations.

Specifically, PSI argues that Head‘s claims accrued when the leak first occurred, and

that the discovery rule and fraudulent concealment doctrine do not apply or do not serve

to toll the limitations period such that Head‘s lawsuit was timely. Head counters that

PSI‘s limitations defense was properly struck as a sanction and because limitations

must be pleaded and proved, PSI is not entitled to a judgment on its limitations

affirmative defense.

32
 The statute of limitations is an affirmative defense.22 TEX. R. CIV. P. 94; Fontenot

Petro-Chem. & Mar. Servs., Inc. v. LaBono, 993 S.W.2d 455, 458 (Tex. App.–Corpus

Christi 1999, pet. denied) (citing Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517

(Tex. 1988)). It is the defendant‘s burden to plead and prove its statute of limitations

affirmative defense, otherwise it is waived. See LaBono, 993 S.W.2d at 458; Tuttlebee

v. Tuttlebee, 702 S.W.2d 253, 256 (Tex. App.–Corpus Christi 1985, no writ); see also

Devlin-Weinheimer v. Weinheimer, No. 13-08-00546-CV, 2009 Tex. App. LEXIS 9258,

at **13-14 (Tex. App.–Corpus Christi Dec. 3, 2009, pet. denied) (mem. op.). PSI

pleaded its limitations affirmative defense; however, the trial court struck this defense,

among others, in its sanctions order. Because the trial court struck PSI‘s limitations

defense and because we have concluded that the trial court did not abuse its discretion

in issuing its sanctions order, PSI did not plead and prove its affirmative defense of

limitations. See LaBono, 993 S.W.2d at 458; Tuttlebee, 702 S.W.2d at 256; see also

Weinheimer, 2009 Tex. App. LEXIS 9258, at **13-14. Moreover, this Court has held

―that a mere general denial will not place in issue the affirmative defense of limitations

which must, pursuant to Rule 94 [of the Texas Rules of Civil Procedure], be specially

pleaded.‖ Wynn v. Wynn, 587 S.W.2d 790, 792 (Tex. Civ. App.–Corpus Christi 1979,

no writ). Accordingly, we overrule PSI‘s second issue.

IV. HEAD’S CAUSES OF ACTION

22
Ordinarily, the limitations period for negligence causes of action and causes of action for
breach of an implied warranty arising out of an oral contract is two years from the accrual date. See TEX.
CIV. PRAC. & REM. CODE ANN. § 16.003(a) (West Supp. 2010); see also Certain-Teed Prods. Corp. v. Bell,
422 S.W.2d 719, 721 (Tex. 1968). Breach of contract, fraud, breach of fiduciary duty, and breach of an
implied warranty arising out of a written contract claims have a four-year limitations period. See TEX. CIV.
PRAC. & REM. CODE ANN. § 16.004(a)(4)-(5) (West 2002), § 16.051 (West 2008); see also Bell, 422
S.W.2d at 721.

33
 By its third through seventh issues, PSI argues that the evidence supporting the

jury‘s verdict as to Head‘s causes of action is insufficient.

A. Standard of Review

An appellate court will sustain a legal sufficiency or "no-evidence" challenge if the

record shows: (1) the complete absence of a vital fact; (2) the court is barred by rules of

law or evidence from giving weight to the only evidence offered to prove a vital fact; (3)

the evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence

establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168

S.W.3d 802, 810 (Tex. 2005). In conducting a legal sufficiency review, we must

consider the evidence in the light most favorable to the jury's verdict and indulge every

reasonable inference that supports it. Id. at 821-22; Harris County v. Vernagallo, 181

S.W.3d 17, 24 (Tex. App.–Houston [14th Dist.] 2005, no pet.); Prairie View A&M Univ. v.

Brooks, 180 S.W.3d 694, 705 (Tex. App.–Houston [14th Dist.] 2005, no pet.). The

evidence is legally sufficient if it would enable reasonable and fair-minded people to

reach the decision under review. See City of Keller, 168 S.W.3d at 827-28; Vernagallo,

181 S.W.3d at 24; Brooks, 180 S.W.3d at 705. We must credit favorable evidence if a

reasonable trier of fact could have, and disregard contrary evidence unless a

reasonable trier of fact could not have. Ingram, 288 S.W.3d at 893; Columbia Med. Ctr.

of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 248 (Tex. 2008); City of Keller, 168

S.W.3d at 827. The trier of fact is the sole judge of the witnesses' credibility and the

weight to be given their testimony. City of Keller, 168 S.W.3d at 819; Vernagallo, 181

S.W.3d at 24; Brooks, 180 S.W.3d at 705. Moreover, in reviewing the sufficiency of the

evidence, we may not substitute our own judgment for that of the trier of fact, even if we

34
would reach a different answer on the evidence. See Mar. Overseas Corp. v. Ellis, 971

S.W.2d 402, 407 (Tex. 1998); see also Scoggins Constr. Co. v. Dealers Elec. Supply

Co., No. 13-06-00368-CV, 2009 Tex. App. LEXIS 8171, at *9 (Tex. App.–Corpus Christi

Oct. 22, 2009, pet. denied) (mem. op. on remand).

In reviewing the factual sufficiency of the evidence, we consider and weigh all of

the evidence in the case and set aside the verdict and remand the cause for a new trial

if we conclude, viewing the evidence in a neutral light, that the verdict is so against the

great weight and preponderance of the evidence as to be manifestly unjust, regardless

of whether the record contains some "evidence of probative force" in support of the

verdict. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761-62 (Tex.

2003); see also Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam). The

evidence supporting the verdict is to be weighed along with the other evidence in the

case, including that which is contrary to the verdict. Jackson, 116 S.W.3d at 761-62. If

we determine that the evidence supporting the jury's verdict is not supported by factually

sufficient evidence, we must "detail the evidence relevant to the issue" and "state in

what regard the contrary evidence greatly outweighs the evidence in support of the

verdict." Dow Chem Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam).

In the context of a jury trial, the sufficiency of the evidence is reviewed in the light

of the charge submitted if no objection is made to the charge. Romero v. KPH

Consolidation, Inc., 166 S.W.3d 212, 221 (Tex. 2005); Wal-Mart Stores, Inc. v. Sturges,

52 S.W.3d 711, 715 (Tex. 2001). Here, although PSI expressed many concerns with

the jury charge, it appears from the record that the concerns were resolved in PSI‘s

favor in the charge given to the jury, and the trial court, therefore, ever ruled on its

35
objections, if any. Thus, we review the evidence under the law as set out in the jury

charge. See Romero, 166 S.W.3d at 221; see also Sturges, 52 S.W.3d at 715.

B. Breach of Fiduciary Duty

In its third issue, PSI argues that there is no evidence that PSI agreed to be

subject to Head‘s control; that there is no evidence that Head controlled the details of

PSI‘s work; that it did not owe general fiduciary duties to Head; and that Head failed to

prove damages sustained as the result of the alleged breach of fiduciary duty.

Essentially, PSI attacks all three elements of Head‘s breach of fiduciary duty cause of

action.

1. Applicable Law

The charge asked the jury whether it believed that PSI was an agent of Head.

Agency was defined as:

[A] consensual relationship requiring that an agent-to-be and a
principal-to-be consent to their association with each other.

The definition of agency requires as an essential element that the
agent consent to act on the principal‘s behalf, as well as subject to the
principal‘s control.

Performing a duty created by contract may well benefit the other
party but the performance is that of an agent only if the elements of
agency are present.

Proof of agency requires a showing that the alleged principal has
the right to assign the alleged agent‘s task and the right to control the
means and details of the process to be used to accomplish this task.

The right to veto another‘s decisions does not by itself create the
right to give affirmative directives that action be taken, which is integral to
the right of control within an agency relationship.

The principal‘s power to control the agent distinguishes principals in
agency relationships from those who contract to receive services provided
by persons who are not agents.

36
 A relationship is not one of agency unless the agent consents to act
on behalf of the principal, and the principal has the right throughout the
duration of the relationship to control the agent‘s acts.

The charge further stated that Head must prove that PSI failed to comply with a

fiduciary duty owed to Head by showing: (1) the transactions were not fair and were

inequitable to Head; (2) PSI did not make reasonable use of the confidence Head

placed in it; (3) PSI failed to act in the utmost good faith and exercised the most

scrupulous honesty toward Head; (4) PSI placed its own interests above those of Head,

which caused a detriment to Head; and (5) PSI failed to fully and fairly disclose

important information to Head concerning transactions. See Lundy v. Masson, 260

S.W.3d 482, 501 (Tex. App.–Houston [14th Dist.] 2008, pet. denied) (outlining the

essential elements of a breach of fiduciary duty claim); see also Bradshaw v. Bonilla,

No. 13-08-00595-CV, 2010 Tex. App. LEXIS 662, at *9 (Tex. App.–Corpus Christi Jan.

28, 2010, pet. denied) (mem. op.). A plaintiff bears the burden of proving each element

of his breach of fiduciary duty claim. See Avary v. Bank of Am., N.A., 72 S.W.3d 779,

792 (Tex. App.–Dallas 2002, pet. denied); see also SJW Prop. Commerce, Inc. v. Sw.

Pinnacle Props., Inc., 328 S.W.3d 121, 154 (Tex. App.–Corpus Christi 2010, pet. filed).

A fiduciary relationship may arise as a matter of law in certain formal

relationships. See Meyer v. Cathey, 167 S.W.3d 327, 330 (Tex. 2005) (per curiam);

Priddy v. Rawson, 282 S.W.3d 588, 600 (Tex. App.–Houston [14th Dist.] 2009, pet.

denied); see also Lundy, 260 S.W.3d at 501; Cotten v. Weatherford Bancshares, Inc.,

187 S.W.3d 687, 698 (Tex. App.–Fort Worth 2006, pet. denied). However, because not

every relationship involving a high degree of trust and confidence rises to the stature of

a formal fiduciary relationship, the law also recognizes the existence of an informal or

37
confidential fiduciary relationship. Meyer, 167 S.W.3d at 330. An informal fiduciary

relationship may arise from a moral, social, domestic, or purely personal relationship of

trust and confidence. Id.; see Crim Truck & Tractor Co. v. Navistar Int'l Transp. Corp.,

823 S.W.2d 591, 594 (Tex. 1992); Priddy, 282 S.W.3d at 600; Cotten, 187 S.W.3d at

698. The moral, social, domestic, or personal relationship upon which the informal or

confidential relationship is predicated "'must exist prior to, and apart from the agreement

made the basis of the suit.'" Meyer, 167 S.W.3d at 331 (quoting Schlumberger Tech.

Corp. v. Swanson, 959 S.W.2d 171, 177 (Tex. 1997)); Priddy, 282 S.W.3d at 600; see

Hubbard v. Shankle, 138 S.W.3d 474, 483 (Tex. App.–Fort Worth 2004, pet. denied)

("In other words, there must be a preexisting special relationship of trust and confidence

that is betrayed in later dealings."). A person is justified in placing confidence in the

belief that another party will act in his best interest only where he is accustomed to

being guided by the judgment or advice of the other party and there exists a long

association in a business relationship as well as a personal friendship. Hoggett v.

Brown, 971 S.W.2d 472, 488 (Tex. App.–Houston [14th Dist.] 1997, pet. denied); see

Ins. Co. of Am. v. Morris, 981 S.W.2d 667, 674 (Tex. 1998) (providing that "confidential

relationships may arise when the parties have dealt with each other in such a manner

for a long period of time that one party is justified in expecting the other to act in its best

interest"); see also Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 200 (Tex.

2002) (―The agreement to act on behalf of the principal causes the agent to be a

fiduciary, that is, a person having a duty, created by his undertaking, to act primarily for

the benefit of another in matters connected with his undertaking.‖). Moreover, mere

38
subjective trust is insufficient to establish a confidential relationship that gives rise to a

fiduciary duty. Meyer, 167 S.W.3d at 331.

The relationship between agent and principal is a fiduciary relationship.

RESTATEMENT (SECOND) OF AGENCY § 1 (1958). An agency relationship does not depend

upon the express appointment or assent by the principal; rather, it may be implied from

the conduct of the parties. Orozco v. Sander, 824 S.W.2d 555, 556 (Tex. 1992); see

Ross v. Tex. One P'ship, 796 S.W.2d 206, 210 (Tex. App.–Dallas 1990), writ denied per

curium, 806 S.W.2d 222 (Tex. 1991); Mercedes-Benz of N. Am., Inc. v. Dickenson, 720

S.W.2d 844, 858 (Tex. App.–Fort Worth 1986, no writ). An agent is one who is

authorized by another to transact business or manage some affair for him. Welch v.

Coca-Cola Enters., Inc., 36 S.W.3d 532, 539 (Tex. App.–Tyler 2000, pet. withdrawn).

The existence of an agency relationship may be established by circumstantial evidence

based upon proof of all the facts and circumstances that shows the relationship of the

parties and throws light upon the character of such relations. Id. at 540.

2. Discussion

In this case, the jury concluded that PSI was Head‘s agent and that PSI failed to

comply with the fiduciary duty owed to Head, the principal.23 In particular, the jury found

that PSI failed to show that: (1) the transactions between the parties were fair and

equitable to Head; (2) it made reasonable use of the confidence that Head placed with

it; (3) it acted in the utmost good faith and exercised the most scrupulous honesty

towards Head; (4) it did not place its interests above Head‘s; and (5) it fully and fairly

disclosed all important information to Head concerning the transactions involved in this

case.
23
Implicit in the jury‘s finding that PSI was Head‘s agent is that Head was the principal.

39
 a. Existence of a Duty

In challenging the duty element of Head‘s breach of fiduciary duty cause of

action, PSI directs us to Carpenter‘s testimony that PSI was simply a ―vendor‖ and that

Head simply ―relied on‖ PSI and argues that the record contains no testimony indicating

that Head controlled PSI‘s work. PSI argues that it acted as an independent contractor,

not as Head‘s agent, in installing the underground storage system. See First Nat’l

Acceptance Co. v. Bishop, 187 S.W.3d 710, 714 (Tex. App.–Corpus Christi 2006, no

pet.) (―The party claiming agency must prove the principal has both the right to assign

the agent‘s task and the right to control the means and details by which the agent will

accomplish the task. The principal‘s extent of control over the details of accomplishing

the assigned task primarily distinguishes the status of agent from that of independent

contractor.‖) (citations omitted). We disagree.

The evidence establishes that PSI and Head had a long-standing relationship

dating back to 1997, when Head first contracted with PSI to remove the three steel

tanks and implement the new underground storage tank system. Head continued to

use PSI exclusively to perform work on the underground storage tank system. In fact,

the record demonstrates that PSI made repairs to the underground storage tank system

at least fifty times from 1997 to 2001. In October 1999, based on PSI‘s

recommendation, Head authorized PSI to install a new ATG system, which was

designed to allow Head to discontinue using the stick method to monitor inventory

levels. In addition, PSI accepted responsibility for ensuring that Head‘s system was

compliant with State rules and regulations. PSI advised Head regarding the system‘s

registration, monthly leak tests, monthly inventory control, and annual line and leak

40
detector tests. Carpenter testified that PSI conducted annual tank tightness and line

tightness tests at the direction of Head so that the truck stop could obtain a State-

mandated fuel-delivery certificate. Beginning in September 1999, PSI sent Morris to the

truck stop to speak with Head and his employees about compliance issues, including

proper inventory control.

The record also reflects that PSI repeatedly acted on Head‘s behalf with the

TNRCC. PSI filed the initial application with the TNRCC for the construction of the

underground storage tank system on behalf of Head. PSI also filed paperwork with the

TNRCC pertaining to the cause and scope of the leak on Head‘s behalf, which included

additional calculations and revisions done to the inventory records created by Obregon.

Furthermore, Barron testified at trial that ―I worked for Bill Head,‖ thereby intimating that

PSI was subject to Head‘s control. Barron himself executed the ―Release Determination

Report Form‖ that was filed with the TNRCC as the on-site supervisor. Even Cordova,

the TNRCC field investigator, noted that ―[f]rom what I can determine, they [PSI] were

representing, providing information representing Bill Head.‖ Carpenter testified that he

had some input in the paperwork sent to the TNRCC, and he was required to sign the

paperwork before it was sent, indicating that he reviewed the paperwork and assented

to the representations made by PSI.

Once the leak was detected, PSI agreed to act on behalf of Head in the

assessment and remediation of the leak, in compliance with State regulations.

Carpenter stated that PSI and ERM were hired to investigate and repair the leak. He

noted that: ―[w]ell, it was—it was two parties, Environmental Risk Management and

Petroleum Solutions, and Mark [Barron] was involved into it because he—you know, he

41
wanted to get to the source of the problems, and I put it in their hands . . . to backtrack

and see where it came from.‖ Carpenter further noted that the employees at the truck

stop lacked the ability to investigate and repair the leak; thus, Head relied on PSI and

ERM for these tasks. Barron tested the tanks and pipes, and after being told about the

flex connector, Carpenter directed PSI to make all necessary repairs to the system to

―get online and back up and pumping [in] as short time as possible.‖

PSI directs us to Carpenter‘s testimony, where he testified that ―we [Head] relied

on—on them [PSI] to direct us in the correct direction, as far as what was needed at that

immediate time.‖ PSI also notes that Head did not exercise control over the means of

completing the assigned tasks; in fact PSI was left ―entirely free to pursue that assigned

task as PSI chose.‖ This testimony appears to conflict with testimony indicating that PSI

acted on Head‘s behalf during the: (1) construction of the underground storage tank

system; (2) filing of paperwork with the TNRCC; (3) testing of the system; (4)

investigation of the leak; and (5) remediation of the leak. The record contains testimony

that Head had input or exerted control over the means of completing most of the

assigned tasks, especially with regard to the filing of paperwork and interactions with

the TNRCC, and that PSI regularly repaired the system, conducted tests, and ensured

that the system remained in compliance with State regulations and standards; therefore,

we conclude that PSI owed Head a general fiduciary duty. See Bishop, 187 S.W.3d at

714; see also Field Measurement Serv., Inc. v. Ives, 609 S.W.2d 615, 619 (Tex. Civ.

App.–Corpus Christi 1980, writ ref‘d n.r.e.) (noting that the fiduciary duty owed by an

agent to his principal is inherent in an agency relationship).

42
 To the extent that Carpenter‘s testimony indicates that Head relied on PSI and

allowed PSI to pursue assigned tasks as PSI chose, we note that the reconciliation of

conflicting evidence was within the province of the jury, and we must defer to the jury‘s

resolution so long as the finding is reasonable. See City of Keller, 168 S.W.3d at 819;

see also McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986) (stating that when

presented with conflicting evidence, the fact-finder may believe one witness and

disbelieve others); Ashcraft v. Lookadoo, 952 S.W.2d 907, 910 (Tex. App.–Dallas 1997,

pet. denied) (noting that the trier of fact is the exclusive judge of the witnesses‘

credibility and the weight to be given their testimony). In concluding that PSI was

Head‘s agent, the jury implicitly found that PSI owed Head a fiduciary duty to act for the

benefit of Head and clearly rejected PSI‘s assertion that PSI acted solely as an

independent contractor, rather than as Head‘s agent, when completing tasks for Head.

See City of Keller, 168 S.W.3d at 819. To the extent that PSI argues that PSI did not

owe Head a fiduciary duty because there were not written contracts for every assigned

task, we note that Texas courts have held that agency relationships may be implied

from the conduct of the parties. See Orozco, 824 S.W.2d at 556; Ross, 796 S.W.2d at

210; Dickenson, 720 S.W.2d at 858.

Based on the foregoing, we conclude that the jury was reasonable in concluding

that a fiduciary relationship existed between PSI and Head. See Johnson, 73 S.W.3d at

200; Orozco, 824 S.W.2d at 556; Welch, 36 S.W.3d at 540; see also Ross, 796 S.W.2d

at 210; Dickenson, 720 S.W.2d at 858. Given that, we must now analyze the remaining

elements of Head‘s breach-of-fiduciary-duty claim.

b. Breach of the Duty and Damages Elements

43
 The jury awarded Head damages for: (1) attorney‘s fees associated with the

defense of the enforcement action; (2) cost of emergency clean-up of the November

2001 leak; (3) cost of past remediation of the truck stop; (4) cost of future remediation of

the truck stop; (5) value of the diesel fuel lost as a result of the leak; and (6) the cost of

the ATG system installed by PSI in 1999. PSI alleges that ―[t]here is no evidence any of

these damages were proximately caused by a breach of fiduciary duty owed by PSI.‖

The record indicates otherwise.

At trial, the jury heard evidence of numerous instances where PSI put its own

interest ahead of Head‘s interest. The most obvious example is PSI‘s failure to produce

the alleged faulty flex connector when it insisted in documentation to the TNRCC that

the flex connector under the fourth dispenser was the cause of the leak. Moreover, the

record reflects several instances where PSI failed to provide Head with a copy of the

records being provided to the TNRCC. In fact, in one such instance, Head‘s attorneys

requested records regarding the installation of the double-walled fiberglass tanks,

records of service and repair work, and PSI operating manuals, but Morris, a PSI

employee, refused to provide the documents despite having the records in his

possession. In addition, Obregon testified that PSI sent Morris to assist in revising

inventory control records for the truck stop. Witnesses noted that Morris instructed

Obregon to round-off and alter figures using gross calculations, rather than net, before

reporting inventory numbers to the TNRCC.24 Head‘s experts opined that these figures

were altered to minimize PSI‘s fault with respect to the leak and to show that Head was

24
Obregon testified that he was unsure about the whereabouts of the records he created prior to
Morris‘s instructions to recreate records. Obregon noted that someone took the records, and he never
saw them again. Moreover, PSI‘s own expert, Mark Owens, testified that net figures should be used
when reconciling inventory figures.

44
not diligent in discovering the leak. Pruneda, another PSI employee, and other

witnesses testified that the real cause of the leak was an improper installation of a union

at a shear valve, rather than the flex connector that Barron blamed at trial and in

paperwork filed with the TNRCC. This testimony gives rise to an inference that PSI

negligently installed the underground storage tank system and, thus, caused the leak

and the damages associated with discovering, cleaning up, and remediating the leak.

Furthermore, the record also gives rise to an inference that PSI employees, namely

Barron and Morris, engaged in a coordinated effort to place blame for the leak at the

feet of Head. Clearly, such actions would constitute a breach of the fiduciary duty owed

by PSI to Head. See Lundy, 260 S.W.3d at 501; see also Bradshaw, 2010 Tex. App.

LEXIS 662, at *9.

The jury also heard evidence that Cordova relied upon representations made by

PSI to complete his TNRCC investigative report, which served as the basis for the more

than $300,000 in fines assessed against Head. Cordova admitted that Morris was a

colleague of his at the TRNCC; in fact, Cordova acknowledged that Morris trained him

to be an investigator. Never at any point during Cordova‘s investigation did PSI

intervene on Head‘s behalf. Among the fines assessed against Head were for failing to

do annual testing on the underground piping and leak detectors. This testing had been

done, but PSI failed to mention that to Cordova. Morris failed to tell Cordova that PSI

had the installation records for Head‘s system, and Head was subsequently fined for

failing to produce those records. In addition, Head was fined for failing to correctly label

each underground storage tank, which several witnesses testified was PSI‘s

responsibility. Head also received a fine associated with monthly inventory control

45
records, and once again, PSI failed to inform Cordova that the ATG system had been

repaired numerous times and often produced faulty readings. Though the $300,000 in

fines assessed against Head by the TNRCC were reduced, Head was still forced to pay

approximately $30,000 in fines and incurred significant costs in defending the

enforcement action, which required Head to demonstrate compliance with State rules

and regulations, something that PSI could have and should have done as Head‘s agent.

From this evidence, we conclude that a jury could reasonably infer that PSI

breached the fiduciary duty it owed to Head and that the damages awarded resulted

from the breach by PSI. See Si Kyu Kim v. Harstan, Ltd., 286 S.W.3d 629, 635 (Tex.

App.–El Paso 2009, pet. denied) (citing Jones v. Blume, 196 S.W.3d 440, 447 (Tex.

App.–Dallas 2006, pet. denied)) (stating that breach of fiduciary duty requires a showing

that the breach caused an injury); Punts v. Wilson, 137 S.W.3d 889, 891 (Tex. App.–

Texarkana 2004, no pet.)) (same); see also Wells Fargo Bank, N.A. v. Crocker, No. 13-

07-00732-CV, 2009 Tex. App. LEXIS 9791, at *10 (Tex. App.–Corpus Christi Dec. 29,

2009, pet. denied) (noting that a plaintiff has the burden of proving each element of his

breach of fiduciary duty claim). As a result, we hold that there exists more than a

scintilla of evidence to support the jury‘s findings pertaining to Head‘s breach of

fiduciary duty claim. See City of Keller, 168 S.W.3d at 810. We further hold that, after

reviewing the evidence in a neutral light, the jury‘s findings as to Head‘s breach of

fiduciary duty claim is not against the great weight and preponderance of the evidence

as to be manifestly unjust. See Golden Eagle Archery, Inc., 116 S.W.3d at 761-62.

PSI‘s third issue is overruled.

C. Fraud

46
 In its fourth issue, PSI challenges the jury‘s finding that PSI committed fraud

against Head. Specifically, PSI asserts that there is no evidence of fraud, nor is there

evidence that any possible material misrepresentation caused the damages sustained

by Head.

1. Applicable Law

The elements of a cause of action for fraud are: (1) that a material

representation was made; (2) the representation was false; (3) when the representation

was made, the speaker knew it was false or made it recklessly without any knowledge

of the truth and as a positive assertion; (4) the speaker made the representation with

the intent that the other party should act upon it; (5) the party acted in reliance on the

representation; and (6) the party suffered injury as a result. Ernst & Young, L.L.P. v.

Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001); Bradford v. Vento, 48 S.W.3d

749, 754-55 (Tex. 2001). A promise to do an act in the future constitutes fraud only

when made with no intention of performing the promise at the time the promise was

made. Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d

41, 48 (Tex.1998). The mere failure to perform a contract is not evidence of fraud. Id.

Fraudulent intent may be established by either direct or circumstantial evidence, and the

subsequent failure to perform the promise, while not alone dispositive, can be

considered with other factors to establish intent. Johnson & Higgins of Tex., Inc. v.

Kenneco Energy, Inc., 962 S.W.2d 507, 526 (Tex. 1998); Spoljaric v. Percival Tours,

Inc., 708 S.W.2d 432, 434-35 (Tex. 1986).

―Pure expressions of opinion are not actionable. It has been held that a

representation, to be actionable, must be a representation of a material fact.‖ Trenholm

47
v. Ratcliff, 646 S.W.2d 927, 930 (Tex. 1983); see Prudential Ins. Co. of Am. v. Jefferson

Assocs., Ltd., 896 S.W.2d 156, 163 (Tex. 1995) (―A statement is not fraudulent unless

the maker knew it was false when he made it or made it recklessly without knowledge of

the truth.‖). Moreover, a statement is regarded as material if ―it is important to the party

to whom it is made in making a decision regarding the particular transaction. Material

means a reasonable person would attach importance to and would be induced to act on

the information in determining his choice of actions in the transaction in question.‖

Burleson State Bank v. Plunkett, 27 S.W.3d 605, 613 (Tex. App.–Waco 2000, pet.

denied) (citing Beneficial Personnel Serv. v. Porras, 927 S.W.2d 177, 186 (Tex. App.–El

Paso 1996), vacated and remanded by agreement, 938 S.W.2d 716 (Tex. 1997); Am.

Med. Int’l, Inc. v. Giurintano, 821 S.W.2d 331, 338 (Tex. App.–Houston [14th Dist.]

1991, no writ)).

2. Discussion

Here, the jury was instructed that:

Fraud occurs when:

a. a party makes a material misrepresentation,

b. the misrepresentation is made with knowledge of its falsity or made
recklessly without any knowledge of the truth and as a positive
assertion,

c. the misrepresentation is made with the intention that it should be acted
on by the other party, and

d. the other party actually and justifiably relies on the misrepresentation
and thereby suffers injury.

The charge defined ―[m]isrepresentation‖ as a ―false statement of fact.‖

48
 The evidence adduced at trial shows that PSI made numerous

misrepresentations to Head, including the qualities and characteristics of the

underground storage tank system and PSI‘s services, the proper measure for

calculating inventory, and the source of the diesel fuel discharge. Head testified that

representatives from PSI told him that the ATG system ―was supposed to do all the

work and should—should alert us whenever we had a leak‖ and that the ATG system

would allow Head to discontinue stick readings. However, the ATG system

malfunctioned soon after the date of installation; in fact, PSI came to repair the ATG

system more than fifty times from 1997 to 2001. It certainly did not operate as

represented. Although the leak was not discovered until November 2001, experts

opined that the leak likely began in March 2001. Moreover, Cordova testified that even

though Head had an ATG system installed, State regulations required that operators

continue to conduct stick readings or engage in other measuring techniques as a back-

up to an automatic tank gauging system, though this fact was never represented to

Head.

Furthermore, Obregon testified that he was responsible for compiling monthly

inventory records at the truck stop. In doing so, Obregon calculated daily inventory

totals using net figures generated by the ATG system, rather than using gross figures,

which are not adjusted for evaporation. Shortly after the leak was discovered, Morris

unexpectedly paid a visit to the truck stop. Morris represented to Obregon that State

rules and regulations required that inventory figures be rounded off and expressed in

gross numbers for gallons received in order to calculate daily inventory amounts.

Because Obregon had used net figures to do his inventory calculations, Morris

49
instructed Obregon to recreate several months of monthly inventory control records for

the truck stop using gross numbers, though Mark Owens, PSI‘s expert, testified that

State rules and regulations require that net figures be used and that the use of net

figures is more accurate for assessing inventory.

Additionally, PSI represented to Head and the TNRCC that the cause of the leak

was the flex connector under the fourth dispenser. PSI also represented this to the

TNRCC on Head‘s behalf. In fact, Barron signed the discharge determination report as

on-site supervisor conducting the repair work after the leak and noted that the flexible

connection under the fourth dispenser had failed. However, after representing the

cause of the leak to both Head and the TNRCC, Barron removed the alleged faulty flex

connector from the premises, and the part was never seen again, thus making it

impossible to determine with certainty whether the particular flex connector that was

allegedly removed from the premises was indeed the cause of the leak. In any event,

PSI‘s representations about the cause of the leak were undermined by testimony at trial.

One of Head‘s experts, Curran, stated that the source of the leak was a union

underneath the fourth dispenser. Curran based his opinions on, among other things,

the testimony of both Pruneda and Rodriguez. Pruneda, a technician for PSI, testified

that installers for PSI had improperly cross-threaded the union in question, which

caused a small leak in the system, and warranted replacement. Moreover, Curran

noted that the design called for pipes that were not large enough in diameter to reduce

pressure in the piping system when combined with the high-powered pump. Curran

opined that the high pressure in the pump prevented the ATG system from detecting

whether the system was leaking.

50
 In addition to this testimony, Rodriguez failed to corroborate Barron‘s statements

regarding the removal of the flex connector from the premises. Rodriguez testified that

none of the flex hoses were leaking, and as crew chief during the clean-up, he denied

ever seeing Barron test the alleged faulty flex connector, much less place the part in the

back of his truck to be removed from the premises. As is clear from this evidence, PSI

made several false representations to Head throughout the course of their business

relationship.

As a result of the false representations made by Morris, Obregon recreated the

inventory records for the truck stop to coincide with Morris‘s instructions. By doing this,

the newly recreated records seemed to suggest that Head failed to notice an obvious

leak in the system. And the fact that the records were submitted to the TNRCC and

were recreated immediately after the discharge occurred gives rise to an inference that

PSI was attempting to avoid fault for the leak. This inference is further supported by

PSI‘s representations that the flex connector was the cause of the leak, yet failed to

produce the part that was allegedly defective. Barron‘s repeated insistence to Head

and the TNRCC that the defective flex connector caused the leak induced Head to

believe that the defective product was the cause of the leak and, thus, sue Titeflex, the

company that Barron represented as the manufacturer of the part. Further, Head‘s

reliance on PSI‘s representations about the underground storage tank and ATG

systems induced Head to discontinue stick readings, which resulted in fines assessed

by the TNRCC and reduced Head‘s ability to detect a leak in the system. Moreover,

Morris‘s instructions to Obregon regarding the inventory records resulted in calculation

errors, which, in turn, resulted in more fines assessed against Head. In order to reduce

51
the fines assessed, Head disputed the enforcement action and incurred $42,925 in

attorney‘s fees and $2,800 in expenses. Furthermore, as a result of PSI‘s

representations about its systems and the subsequent leak and clean-up, Head incurred

significant costs, including those associated with the fifty repair requests from 1997 to

2001, the lost diesel fuel, and the cost of clean-up and remediation, which the jury

properly awarded.

Based on the foregoing, we conclude that the record contains more than a

scintilla of evidence to support the jury‘s finding on Head‘s fraud claim. See City of

Keller, 168 S.W.3d at 810; see also Ernst & Young, L.L.P., 51 S.W.3d at 577; Bradford,

48 S.W.3d at 754-55; Johnson & Higgins of Tex., Inc., 962 S.W.2d at 526; Spoljaric,

708 S.W.2d at 434-35. We further conclude that, after reviewing the evidence in a

neutral light, the jury‘s findings as to Head‘s fraud claim is not against the great weight

and preponderance of the evidence as to be manifestly unjust. See Golden Eagle

Archery, Inc., 116 S.W.3d at 761-62. Accordingly, we overrule PSI‘s fourth issue.

D. Breach of Contract

By its fifth issue, PSI challenges the sufficiency of the evidence supporting

Head‘s contract claim. PSI contends that: (1) there is no evidence that PSI agreed to

build, install, or service the underground storage tank system in accordance with

undefined environmental rules and regulations and industry standards; (2) the alleged

agreement is unenforceable as a matter of law; (3) if an enforceable contract existed,

the evidence is insufficient to show that any failure to comply resulted in the damages

awarded by the jury; and (4) the damages awarded were not foreseeable. Head asserts

52
that the evidence supporting his contract claims is sufficient to establish the essential

elements of his breach of contract claim.

1. Applicable Law

Whether a contract exists is a question of fact for the jury. See Ward v. Ladner,

322 S.W.3d 692, 698 (Tex. App.–Tyler 2010, pet. filed) (citing Am. Transfer & Storage

Co. v. Reichley, 543 S.W.2d 162, 164 (Tex. App.–Amarillo 1976, writ ref‘d)); Wal-Mart

Stores, Inc. v. Lopez, 93 S.W.3d 548, 555-56 (Tex. App.–Houston [14th Dist.] 2002, no

pet.) (describing implied contracts as those inferred from the acts and conduct of the

parties when the facts and circumstances show a mutual intent to contract); Adams v.

H&H Meat Prods., Inc., 41 S.W.3d 762, 771 (Tex. App.–Corpus Christi 2001, no pet.)

(holding that a jury can properly imply the formation of a contract from any conduct by

both parties recognizing the existence of a contract). To recover for breach of contract,

a plaintiff must prove: (1) the existence of a valid contract; (2) performance or tendered

performance by the plaintiff; (3) breach by the defendant; and (4) harm to the plaintiff as

a result of the breach. See Adams v. H&H Meat Prods., Inc., 41 S.W.3d 762, 771 (Tex.

App.–Corpus Christi 2001, no pet.); see also Beckham Resources, Inc. v. Mantle

Resources, L.L.C., No. 13-09-00083-CV, 2010 Tex. App. LEXIS 1323, at *22 (Tex.

App.–Corpus Christi Feb. 25, 2010, pet. denied).

A contract must be sufficiently definite in its terms so that a fact-finder can

understand what the promisor undertook. See Meru v. Huerta, 136 S.W.3d 383, 390

(Tex. App.–Corpus Christi 2004, no pet.). If the agreement upon which the plaintiff

relies is so indefinite as to make it impossible for the fact-finder to determine the legal

obligations and liabilities of the parties, it is not an enforceable contract. Id.

53
Furthermore, to be legally binding, the parties must have a meeting of the minds and

must communicate consent to the terms of the agreement. Id. The determination of a

meeting of the minds is based upon an objective standard of what the parties said or did

rather than on their subjective state of mind. Searcy v. DDA, Inc., 201 S.W.3d 319, 322

(Tex. App.–Dallas 2006, no pet.) (citing Wal-Mart Stores, Inc. v. Lopez, 93 S.W.3d 548,

556 (Tex. App.–Houston [14th Dist.] 2002, no pet.)).

2. Discussion

Here, the jury was asked whether PSI agreed ―that [PSI] would build, install or

service the underground storage tank system in accordance with environmental rules

and regulations of the State of Texas and Industry Standards‖ and if so, whether PSI

failed to comply with this agreement. The jury answered in the affirmative to both

questions.

At trial, Barron testified that only a licensed, State-approved entity, such as PSI,

may install an underground storage tank system. State rules and regulations prevent

Head from installing his own underground storage tank system. Barron further testified

that PSI is in the business of selling and servicing all products relating to fueling

systems, including the installation, maintenance, and repair of such systems. Because

Head was not a licensed, State-approved installer of underground storage tank

systems, and because PSI excelled in such areas, in 1996, Head contracted with PSI to

remove the pre-existing steel tanks and replace them with the double-walled fiberglass

underground storage tank system.

Barron noted that PSI is a leader in this industry; that it follows State rules and

regulations associated with the installation and maintenance of the systems; and that

54
PSI assists clients in complying with applicable rules and regulations. In fact, PSI was

required to install the underground storage tank and ATG systems in compliance with

State rules and regulations. Once PSI installed the underground storage tank system,

PSI recommended that Head install the ATG system. Based on PSI‘s

recommendations, Head contracted with PSI to have the ATG system installed. Several

witnesses testified that PSI promised to service and repair both systems. From 1997 to

2001, PSI serviced and repaired the systems on more than fifty occasions. With regard

to the underground storage tank system, Head paid PSI $192,647.37 for the installation,

service, and repair of this system. And after the leak was discovered, Head hired PSI to

investigate and clean up, and PSI agreed to repair the leak and get operations back

online.

From the start, Head experienced numerous problems with the underground

storage tank and ATG systems. Barron acknowledged at trial that it was PSI‘s

responsibility to test the system‘s leak detectors each year to ensure that they were

operating properly. Barron later mentioned that he was unsure whether such testing

had actually occurred every year. Instead, Barron argued that it was Head‘s

responsibility to have the leak detectors tested; that Head could have used another

vendor to do the testing; and that PSI only went out to the truck stop when requested to

do so. Barron‘s testimony is undermined by Carpenter‘s assertion that PSI was Head‘s

exclusive vendor regarding the underground storage tank system. In any event, several

witnesses testified that PSI‘s failure to properly install the systems caused the leak in

question, and thus, Head incurred significant damages. Pruneda, in particular,

55
acknowledged that the leak was caused by a negligently-installed union under the fourth

dispenser.

Owens, PSI‘s own expert, testified that had the ATG system been installed

properly or worked properly, the more than 20,000 gallon-leak would have been

detected earlier. Owens stated that the system failed to go into ―slow flow mode‖ once

the leak occurred. Al Soto, a thirty-year employee of PSI and certified installer of

underground storage tank systems, noted that if installed correctly, the primary and

secondary walls of the underground storage tank system should not both fail and that

fact that they did was ―unacceptable.‖ If one of the walls failed, the secondary wall

should have absorbed any leakage. However, the entire underground storage tank

system and the ATG system failed. Dr. Pinkston opined that the likelihood of all of

these systems failing at once was 1 in 500 years, or in other words, it should have been

―an extremely remote possibility.‖ These failures caused Head to incur the damages

awarded, including the cleanup of the leak, past and future remediation, the cost of the

lost diesel fuel, substantial TNRCC fines, and attorney‘s fees associated with this case

and the enforcement action with the TNRCC.

Despite the foregoing, PSI asserts that there existed no written agreement

between Head and PSI to build, install, or service either system ―in accordance with

environmental rules and regulations of the State of Texas and Industry Standards.‖ PSI

further asserts that the agreements between the parties are unenforceable because

they lack definiteness. We disagree.

The evidence demonstrates that the parties agreed for PSI to install the

underground storage tank and ATG systems in exchange for payment. In addition,

56
witnesses testified that PSI regularly repaired and serviced the systems and conducted

annual testing on the systems, as required by the TNRCC. Implicit in these agreements

was that PSI would install, maintain, and service these systems ―in accordance with

environmental rules and regulations of the State of Texas and Industry Standards.‖ We

do not find PSI‘s argument persuasive, especially considering Barron‘s testimony that

PSI was required to comply with State rules and regulations in installing, repairing, and

servicing the systems. Moreover, Barron testified that PSI prides itself on complying

with governing rules and regulations when installing, repairing, and servicing its clients‘

systems and that PSI offers its clients advice about compliance issues. In fact, PSI sent

Morris to consult Obregon and Carpenter regarding inventory control records for

compliance purposes. This evidence amounts to more than a scintilla that PSI agreed

to install, service, and repair the systems at the truck stop ―in accordance with

environmental rules and regulations of the State of Texas and Industry Standards.‖ See

City of Keller, 168 S.W.3d at 810. We, therefore, reject PSI‘s assertion that the

agreements between PSI and Head were unenforceable for lack of definiteness.

Next, PSI argues that there is not sufficient evidence to demonstrate that PSI

breached the agreements with Head and subsequently caused Head damages. PSI

also contends that the damages awarded constituted consequential damages, which

were not recoverable because the damages were not foreseeable to the parties at the

time of contracting. In a breach of contract suit, damages are limited to the actual

damages that are the natural, probable, and foreseeable consequence of the

defendant‘s breach. Hallmark v. Hand, 885 S.W.2d 471, 481 (Tex. App.–El Paso 1994,

writ denied) (citing Mead v. Johnson Group, Inc., 615 S.W.2d 685, 687 (Tex. 1981));

57
Strain v. Gansle, 768 S.W.2d 345, 346-47 (Tex. App.–Corpus Christi 1989, writ denied)

(―It is well established that compensatory damages may be recovered in an action for

breach of contract when ‗the loss is the natural, probable and foreseeable consequence

of the defendant‘s conduct.‘‖). We disagree with PSI‘s contention that the negligent

installation of the underground storage tank system or the implementation of a defective

product in the system and the failure of the ATG system would not potentially result in a

leak and that foreseeable damages would include the costs of the lost fuel, cost of the

clean-up of the leak, past and future remediation, and other damages that the jury

awarded. As we have already concluded, implicit in PSI‘s agreement to install, repair,

and service the underground storage tank and ATG systems was a duty to act in

accordance with State rules and regulations and industry standards. The record reflects

that the failed systems did not comply with such rules, regulations, and standards and

resulted in a leak that cost Head significantly to clean up and remediate. We believe

that such damages could have been foreseen at the time the parties contracted and the

damages naturally flowed from PSI‘s breaching of the agreements it had with Head.

See Mead, 615 S.W.2d at 687; see also Hallmark, 885 S.W.2d at 481; Strain, 768

S.W.2d at 346-47. In fact, had PSI complied with such rules, regulations, and industry

standards the leak in this case likely would not have happened, and Head would not

have sustained any damages. We, therefore, reject PSI‘s argument that the evidence

supporting the breach, causation, and damages elements of Head‘s breach of contract

action is insufficient.

Our review of the record reveals that more than a scintilla of evidence exists to

support the jury‘s finding on Head‘s breach of contract claim. See City of Keller, 168

58
S.W.3d at 810. We further hold that, after reviewing the evidence in a neutral light, the

jury‘s findings as to Head‘s breach of contract claim is not against the great weight and

preponderance of the evidence as to be manifestly unjust. See Golden Eagle Archery,

Inc., 116 S.W.3d at 761-62. Accordingly, we overrule PSI‘s fifth issue.

E. Negligence

By its sixth issue, PSI challenges the sufficiency of the evidence supporting the

jury‘s negligence finding. PSI argues that the record contains no evidence of the

standard of care for a certified installer, builder, or service representative of an

underground storage tank system. Additionally, PSI contends that there is no evidence

indicating that PSI employees breached the applicable standard of care or proximately

caused the damages associated with the leak.

We note that the record is clear that Head did not elect to recover on his

negligence cause of action. The final judgment specifically notes that Head‘s damage

award is premised on his breach of contract, breach of implied warranty, fraud, and

breach of fiduciary causes of action. Because we have concluded that the judgment

can be sustained on Head‘s breach of fiduciary duty, breach of contract, or fraud claims,

we need not address PSI‘s challenges to the jury‘s negligence findings. See TEX. R.

APP. P. 47.1; see also Dana Corp. v. Microtherm, Inc., No. 13-05-00281-CV, 2010 Tex.

App. LEXIS 408, at *46 (Tex. App.–Corpus Christi Jan. 21, 2010, pet. granted, judgm‘t

vacated w.r.m.) (mem. op.); S. Ins. Co. v. Poal, Inc., No. 13-05-00532-CV, 2008 Tex.

App. LEXIS 3911, at *15 (Tex. App.–Corpus Christi May 22, 2008, no pet.) (mem. op.)

(―We also decline to address Southern‘s fourth issue because the award of attorney‘s

59
fees in the interpleader action is dependent on the resolution of other claims that remain

and is not dispositive of this appeal.‖). We overrule PSI‘s sixth issue.

F. Breach of Warranty

In its seventh issue, PSI maintains that the evidence does not indicate it

expressly or impliedly warranted to perform services in a good and workmanlike

fashion. In the alternative, PSI argues that if such a warranty existed, the record

contains no evidence that PSI failed to comply and, thus, proximately caused Head‘s

damages. Head counters that there exists a compelling need for an implied warranty

―to protect Texans from harm caused by stored hydrocarbon leaks.‖ Head does not

refute PSI‘s argument regarding the existence of an express warranty between the

parties.

Because we have concluded that the judgment can be sustained on Head‘s

breach of fiduciary duty, breach of contract, or fraud claims, we need not address PSI‘s

challenges to the jury‘s warranty liability findings. See TEX. R. APP. P. 47.1; see also

Dana Corp., 2010 Tex. App. LEXIS 408, at *46; Poal, Inc., 2008 Tex. App. LEXIS 3911,

at *15. We overrule PSI‘s seventh issue.

V. HEAD’S ATTORNEYS FEES AND PRE-JUDGMENT INTEREST

By its eighth and ninth issues, PSI contends that it is entitled to judgment as a

matter of law on Head‘s claims for attorney‘s fees and pre-judgment interest. With

respect to Head‘s attorney‘s fees claim, PSI argues that: (1) no contract or statute

permits Head to recover attorney‘s fees; (2) Head failed to meet the requirement of

presentment under section 38.02 of the civil practice and remedies code, see TEX. CIV.

PRAC. & REM. CODE ANN. § 38.02 (West 2008); and (3) Head failed to segregate

60
recoverable from unrecoverable attorney‘s fees. Regarding its pre-judgment interest

contention, PSI asserts that Head cannot recover pre-judgment interest on future

damages, nor can he recover pre-judgment interest without evidence and a finding that

he provided written notice of his claim on November 10, 2001.

A. Attorney’s Fees

Section 38.001(8) of the civil practice and remedies code authorizes the recovery

of reasonable attorney‘s fees based on contract claims. Id. § 38.001(8) (West 2008). A

party who prevails on a breach of contract claim and is awarded damages may recover

its reasonable attorney‘s fees under section 38.001(8) of the civil practice and remedies

code. Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997); see Intercontinental

Group P’ship v. KB Home Lone Star, L.P., 295 S.W.3d 650, 653 (Tex. 2009) (―Under

the American Rule, litigants‘ attorney‘s fees are recoverable only if authorized by statute

or by a contract between the parties.‖); MBM Fin. Corp. v. Woodlands Operating Co.,

292 S.W.3d 660, 669 (Tex. 2009); Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299,

310-11 (Tex. 2006). An award of attorney‘s fees is mandatory under section 38.001

upon proof of reasonableness. World Help v. Leisure Lifestyles, Inc., 977 S.W.2d 662,

683 (Tex. App.–Fort Worth 1998, pet. denied) (citing Atlantic Richfield Co. v. Long

Trusts, 860 S.W.2d 439, 449 (Tex. App.–Texarkana 1993, writ denied); Budd v. Gay,

846 S.W.2d 521, 524 (Tex. App.–Houston [14th Dist.] 1993, no writ)). Nevertheless, the

amount of the attorney‘s fees award lies within the discretion of the trial court and will

only be reversed for an abuse of that discretion. Ragsdale v. Progressive Voters

League, 801 S.W.2d 880, 881 (Tex. 1990); see Dail v. Couch, 99 S.W.3d 390, 391

(Tex. App.–Corpus Christi 2003, no pet.). The test for abuse of discretion is to

61
determine whether the trial court acted without reference to any guiding rules or

principles, or whether, under the circumstances of the case, the trial court‘s actions

were arbitrary or unreasonable. Downer, 701 S.W.2d at 241-42.

In this case, the jury concluded that PSI breached agreements with Head, and

we have affirmed the jury‘s decision. Because Head prevailed on his breach of contract

claim and was awarded damages, he was entitled to reasonable attorney‘s fees. See

TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8); see also Solis, 951 S.W.2d at 390. On

appeal, PSI does not challenge the reasonableness of the attorney‘s fees awarded, but

it does argue that Head failed to timely present his breach of contract claim and that he

failed to segregate attorney‘s fees so that the fees were recovered solely under his

breach of contract claim.

1. Presentment

PSI asserts that Head failed to timely present his contract claim and that the filing

of suit cannot satisfy the requirements of section 38.002. See TEX. CIV. PRAC. & REM.

CODE ANN. § 38.00225; Llanes v. Davila, 133 S.W.3d 635, 641 (Tex. App.–Corpus

Christi 2003, no pet.).26 Head counters that based on a correspondence sent on May

25
Section 38.002 of the civil practice and remedies code provides that:

To recover attorney‘s fees under this chapter:

(1) the claimant must be represented by an attorney;

(2) the claimant must present the claim to the opposing party or to a duly authorized
agent of the opposing party; and

(3) payment for the just amount owed must not have been tendered before the
expiration of the 30th day after the claim is presented.

TEX. CIV. PRAC. & REM. CODE ANN. § 38.002 (West 2008).
26
In Llanes v. Davila, this Court noted that:

62
30, 2002, PSI knew of his contract claim more than thirty days before trial. Head also

argues that PSI waived this contention by failing to object in the trial court to the amount

of attorney‘s fees, the reasonableness of the attorney‘s fees, and the necessity of the

work performed.

There is no indication that PSI objected in the trial court to Head‘s apparent

failure to present his contract claim. Moreover, PSI did not file a verified denial that

Head failed to present his contract claim. Thus, this contention has not been preserved

for appeal.27 See TEX. R. APP. P. 33.1; Llanes, 133 S.W.3d at 641; see also Reveille

Trucking, Inc. v. Loera Customs Brokerage, Inc., No. 13-08-00127-CV, 2010 Tex. App.

To recover attorney‘s fees, the claimant must present the claim to the opposing
party. The purpose of the presentment requirement is to allow the person against whom
a claim is asserted an opportunity to pay within thirty days of receiving notice of the claim,
without incurring an obligation for attorney‘s fees. The party must plead and prove that
he or she presented a contract claim to the opposing party, and the opposing party failed
to tender performance. No particular form of presentment of a claim is required.

....

In the instant case, appellees argue that presentment was made through their
pleadings and participation in mediation. However, neither the filing of a suit, nor the
allegation of a demand in the pleadings can alone constitute presentment of a claim or a
demand that the claim be paid.

133 S.W.3d 635, 641 (Tex. App.–Corpus Christi 2003, no pet.) (internal citations omitted).
27
In any event, we note that record contains a letter dated May 30, 2002, in which Head‘s
counsel stated, in regards to PSI‘s requests for payment for work performed at the truck stop, that:

Your letter dated May 21, 2002[,] grossly over[]simplifies the current situation
between our clients. It is my understanding that equipment installed by your client [PSI]
resulted in a fuel spill at the Truck Stop and damages ensuing therefrom. Based upon
my review of the situation and in the event your client elects to pursue this matter further,
you will leave my client with no option other than to allege causes of action against your
client for breach of contract, negligence along with other violations of Texas law.
However, I am sure that an amicable resolution to this matter can be reached.

(Emphasis added). Because section 38.002 is to ―be liberally construed to promote its underlying
purpose,‖ see Jones v. Kelley, 614 S.W.2d 95, 100 (Tex. 1981), because no particular form of
presentment of a claim is required, and because Head‘s May 30, 2002 letter informed PSI about a
possible breach of contract action, PSI‘s presentment contention would fail even if it had been preserved.
See Llanes, 133 S.W.3d at 641 (citing Grace v. Duke, 54 S.W.3d 338, 344 (Tex. App.–Austin 2001, pet.
denied); Carr v. Austin Forty, 744 S.W.2d 267, 271 (Tex. App.–Austin 1987, writ denied)).

63
LEXIS 5027, at **17-20 (Tex. App.–Corpus Christi June 29, 2010, pet. denied) (mem.

op.).

2. Segregation of Attorney‘s Fees

With regard to the segregation of attorney‘s fees, PSI contends that it is entitled

to a new trial because Head did not segregate attorney‘s fees with respect to each

cause of action. Specifically, PSI alleges that Head is entitled to attorney‘s fees, if any,

solely on his breach of contract action. Head asserts that his request for attorney‘s fees

could not be segregated because the claims are inextricably ―intertwined.‖ Head notes

that ―the mere fact that Head also prosecuted tort claims for which attorney[‗]s fees are

not recoverable, does not render the breach of contract attorney[‗]s fees incurred

unrecoverable as well.‖

In support of its segregation argument, PSI directs us to the supreme court‘s

decision in Tony Gullo Motors. See 212 S.W.3d at 314. In Tony Gullo Motors, the

supreme court stated that the general rule for segregation of attorney‘s fees is that ―if

any attorney‘s fees relate solely to a claim for which such fees are unrecoverable, a

claimant must segregate recoverable from unrecoverable fees.‖ Id. However, the

supreme court further explained that:

It is certainly true that Chapa‘s fraud, contract, and DTPA claims
were all ―dependent upon the same set of facts or circumstances,‖ but that
does not mean they all required the same research, discovery, proof, or
legal expertise. Nor are unrecoverable fees rendered recoverable merely
because they are nominal; there is no such exception in any contract,
statute, or ―the American Rule.‖ To the extent Sterling suggested that a
common set of underlying facts necessarily made all claims arising
therefrom ―inseparable‖ and all legal fees recoverable, it went too far.

But Sterling was certainly correct that many if not most legal fees in
such cases cannot and need not be precisely allocated to one claim or the
other. Many of the services involved in preparing a contract or a DTPA

64
 claim for trial must still be incurred if tort claims are appended to it; adding
the latter claims does not render the former services unrecoverable.
Requests for standard disclosures, proof of background facts, depositions
of the primary actors, discovery motions and hearing, voir dire of the jury,
and a host of other services may be necessary whether a claim is filed
alone or with others. To the extent such services would have been
incurred on a recoverable claim alone, they are not disallowed simply
because they do double service.

....

Intertwined facts do not make tort fees recoverable; it is only when
discrete legal services advance both a recoverable and unrecoverable
claim that they are so intertwined that they need not be segregated.

Id. at 313-14 (emphasis added).

In this case, PSI did not object to Head‘s alleged failure to segregate attorney‘s

fees. If ―no objection is made to the failure to segregate attorney[‘s] fees, either at the

time evidence of attorney[‘]s fees is presented or at the time of the charge, the error is

waived.‖ Holmes v. Concord Homes, Ltd., 115 S.W.3d 310, 313 (Tex. App.–Texarkana

2003, no pet.); see TEX. R. CIV. P. 274); Solis, 951 S.W.2d at 389; Hruska v. First State

Bank of Deanville, 747 S.W.2d 783, 785 (Tex. 1988); Arthur J. Gallagher & Co. v.

Dieterich, 270 S.W.3d 695, 705-06 (Tex. App.–Dallas 2008, no pet.); Lesikar v.

Rappeport, 33 S.W.3d 282, 317 (Tex. App.–Texarkana 2000, pet. denied)); see also

Norrell v. Aransas County Navigation Dist. No. 1, 1 S.W.3d 296, 303-04 (Tex. App.–

Corpus Christi 1999, no pet.).

B. Pre-Judgment Interest

With respect to its argument about pre-judgment interest, PSI asserts that Head

was improperly awarded pre-judgment interest based on future damages and that the

pre-judgment interest calculation does not comport with the time frame outlined in

section 304.104 of the finance code. See TEX. FIN. CODE ANN. § 304.104 (West 2006).

65
We review a trial court‘s award of pre-judgment interest under an abuse of discretion

standard. See Morales v. Morales, 98 S.W.3d 343, 348 (Tex. App.–Corpus Christi

2003, pet. denied); see also Sw. Grain Co. v. Pilgrim’s Pride S.A. de C.V., No. 13-07-

00557-CV, 2010 Tex. App. LEXIS 5014, at *16 (Tex. App.–Corpus Christi June 28,

2010, pet. denied) (mem. op.). As noted earlier, a trial court abuses its discretion if it

acted arbitrarily, unreasonably, or without reference to any guiding rules or principles.

See Downer, 701 S.W.2d at 241-42; see also Sw. Grain Co., 2010 Tex. App. LEXIS

5014, at *16.

Section 301.102 of the finance code authorizes an award of pre-judgment

interest ―in a wrongful death, personal injury, or property damage case.‖ TEX. FIN. CODE

ANN. § 304.102 (West 2006). Pre-judgment interest is measured from the ―earlier of the

180th day after the date the defendant receives written notice of a claim or the date the

suit is filed and ending on the day preceding the date judgment is rendered.‖ Id. §

304.104. However, ―[p]re-judgment interest may not be assessed or recovered on an

award of future damages.‖ Id. § 304.1045 (West 2006).

The final judgment recites that Head was awarded actual damages in the amount

of $848,142.38. Pre-judgment interest accruing from May 9, 2002 through January 13,

2009, at a rate of 5% per annum, was awarded to Head for a total amount of

$283,178.88 in pre-judgment interest. The final judgment does not segregate pre-

judgment interest associated with past and future damages awarded. PSI does not

challenge the sufficiency of the evidence supporting the amount of damages awarded,

nor does it challenge the failure to segregate pre-judgment interest between past and

future damages. Nevertheless, Head concedes that to the extent any pre-judgment

66
interest is attributed to future damages, we should modify the judgment to reflect only

pre-judgment interest on past damages. See Main Place Custom Homes, Inc. v.

Honaker, 192 S.W.3d 604, 628-29 (Tex. App.–Fort Worth 2006, pet. denied) (modifying

a judgment to exclude $69,283 in pre-judgment interest that the trial court found to be

attributable to future costs of repair). However, unlike Honaker, the record in this case

does not contain any findings indicating how much of the pre-judgment interest is

attributable to future damages. Of the $848,142.38 in actual damages awarded,

$560,450, or approximately 66% of the damages award, constitutes future damages. If

we were to subtract the future damages from the actual damages award, we would be

left with $287,692.38 in past damages. It is this amount upon which pre-judgment

interest should be based. See TEX. FIN. CODE ANN. § 304.1045; see also Honaker, 192

S.W.3d at 628-29.

In addition, we agree with PSI‘s argument that the time frame outlined in section

304.104 of the finance code was not properly applied in this case. We are not sure from

where the May 9, 2002 date that serves as the starting point for pre-judgment interest

calculations came. Based on our review of the record, it appears that Head first notified

PSI of his potential claims on May 30, 2002. Moreover, Head did not file suit until

February 13, 2008. In addition, the final judgment specifies that pre-judgment interest

accrued from May 9, 2002 to the date the judgment was signed, January 13, 2009, a

date that section 304.104 of the finance code excludes in the calculations of pre-

judgment interest. See TEX. FIN. CODE ANN. § 304.104. Because there is a discrepancy

between the dates the pre-judgment interest calculations should begin and end and

because the trial court did not clearly specify the amount of pre-judgment interest

67
attributable to future damages, we believe that a remand is necessary for proper

findings and recalculation of pre-judgment interest, if it is found to be necessary. See

Royal Maccabees Life Ins. Co. v. James, 146 S.W.3d 340, 354 (Tex. App.–Dallas 2004,

pet. denied) (remanding an award of pre-judgment interest to the trial court for

recalculation); see also Guerrero v. Salinas, No. 13-05-323-CV, 2006 Tex. App. LEXIS

8562, at **48-49 (Tex. App.–Corpus Christi Aug. 10, 2006, no pet.) (mem. op.) (same).

Accordingly, we sustain PSI‘s ninth issue.

VI. PROPORTIONATE RESPONSIBILITY

In its tenth issue, PSI alleges that the trial court improperly disregarded the jury‘s

proportionate responsibility findings—that PSI was 75% responsible for the leak and

Head was 25% responsible. Head responds that the jury‘s proportionate responsibility

finding is immaterial because chapter 33 proportionate responsibility applies to only tort

causes of action and Head elected to recover on, among other things, his breach of

contract cause of action.

―A [jury] question is immaterial when it should not have been submitted, it calls

for a finding beyond the province of the jury, such as a question of law, or when it was

properly submitted but has been rendered immaterial by other findings.‖ Se. Pipe Line

Co. v. Tichacek, 997 S.W.2d 166, 172 (Tex. 1999) (citing Spencer v. Eagle Star Ins. Co.

of Am., 876 S.W.2d 154, 157 (Tex. 1994)). After the jury returned its verdict, Head

elected to recover on his breach of contract, breach of implied warranty, fraud, and

breach of fiduciary duty causes of action. See Boyce Iron Works, Inc. v. Sw. Bell Tel.

Co., 747 S.W.2d 785, 787 (Tex. 1988) (―When a party tries a case on alternative

theories of recovery and a jury returns favorable findings on two or more theories, the

68
party has a right to a judgment on the theory entitling him to the greatest or most

favorable relief.‖). However, neither the jury nor the trial court specified how the

damages assessed corresponded to the causes of action upon which Head elected to

recover. Citing Garza, PSI argues that the ―jury‘s allocation of responsibility to Head is

supported by considerable evidence that Head failed to properly inspect and monitor his

diesel storage system.‖ 257 S.W.3d at 704-05. We concluded earlier that the evidence

supporting Head‘s breach of contract claim is sufficient. Therefore, because the

damages award could be premised on Head‘s breach of contract claim, a claim in which

the doctrine of proportionate responsibility does not apply, we conclude that the trial

court properly disregarded the jury‘s proportionate responsibility findings as immaterial.

See Tichacek, 997 S.W.2d at 172; Spencer, 876 S.W.2d at 157; see also Doncaster,

161 S.W.3d at 604. Accordingly, we overrule PSI‘s tenth issue.

VII. OVERLAPPING DAMAGES

By its eleventh issue, PSI contends that it is entitled to a new trial because the

trial court erroneously refused to instruct the jury on overlapping damages. PSI asserts

that the trial court should have instructed the jury that ―you shall not award any sum of

money on any element if you have otherwise, under some other element, awarded a

sum of money for the same loss.‖ According to PSI, the failure to give this instruction

―probably caused the rendition of an improper judgment by allowing the jury to award a

double recovery or probably prevented PSI from properly presenting its case to this

Court by preventing PSI from demonstrating the existence of a double recovery.‖ Head

argues that PSI‘s sole authority for this argument, the supreme court‘s decision in

Golden Eagle Archery, Inc v. Jackson, 116 S.W.3d 757 (Tex. 2003), is inapplicable.

69
Head also argues that PSI‘s argument that there was a potential for overlapping

damages is not enough to warrant a new trial. Moreover, Head counters that PSI failed

to establish a double recovery or that it was harmed by the trial court‘s submission.

In Golden Eagle Archery, a personal-injury case, the supreme court was tasked

to resolve how courts of appeals should conduct a factual sufficiency review when ―(1) a

jury is permitted to award damages for elements that somewhat overlap, (2) the jury is

instructed not to duplicate an award for any particular loss, and (3) the jury awards no

damages or damages that are allegedly inadequate for an element that could overlap

with another.‖ Id. at 758. The evidence presented at trial in Golden Eagle Archery

pertained to more than one category of damages—physical pain and mental anguish,

―physical impairment of loss of vision,‖ and ―physical impairment other than the loss of

vision.‖ Id. at 760. The jury was instructed to ―[c]onsider the elements of damages

listed below and none other. Consider each element separately. Do not include

damages for one element in any other element.‖ Id. at 762. The jury declined to find

that the product involved in the incident was defectively designed; however, it did find

that the manufacturer failed to give adequate warnings about the product‘s danger. Id.

The jury ultimately awarded damages on several grounds, and Jackson complained that

the damages overlapped, especially with respect to the physical impairment causes of

action. Id. at 760-61. In analyzing Jackson‘s complaints about the jury charge, the

supreme court noted that defining damage categories for juries in such a way that they

do not overlap may not be feasible for some damage elements. Id. The court further

noted that:

The charge in this case permitted the jury to award separate
amounts of damages in six different categories. The standard of review to

70
 determine factual sufficiency of the evidence that we set forth today differs
from the standard of review that is applied when the jury is asked to award
a single amount of damages, but is told that it may consider various
elements in arriving at that amount. In the latter circumstance, we have
held that a challenge must address all the elements that could have been
considered by the jury in making its total, single-amount award. ―If there is
just one element that is supported by the evidence, the damages award
will be affirmed if it is supported by the evidence.‖

In the case before us, the jury had six blanks to fill and was
instructed not to award damages for the same element more than once.
Unless the record demonstrates otherwise, an appellate court must
presume that the jury followed these instructions. In conducting its factual
sufficiency review, the court of appeal should presume that the jury did not
award damages to Jackson for any element more than once, unless the
record demonstrates otherwise.

Id. at 770-71 (internal citations & footnotes omitted). Ultimately, the court concluded

that the submission of both ―physical impairment of loss of vision‖ and ―physical

impairment other than loss of vision‖ as separate damage items was not erroneous. Id.

at 776. Moreover, the court stated that Golden Eagle Archery had failed to demonstrate

how it was harmed by such a submission. Id.

As was the case in Golden Eagle Archery, the trial court in this case followed the

State Bar of Texas Pattern Jury Charge to some extent. See id. at 770 (citing Tex.

Pattern Jury Charges PJC 8.2 (2000 ed.)). Moreover, the instructions contained in the

charge in this case are substantially similar to those contained in the charge submitted

in Golden Eagle Archery. See id. at 762. In fact, the jury in this case was repeatedly

instructed to ―[c]onsider the following elements of damages, if any, and none other.‖

With respect to the damages questions upon which PSI complains, the jury was

specifically instructed as follows:

Do not reduce the amount, if any, in your answer because of the
negligence, if any, of Bill Head d/b/a Bill Head Enterprises. Do not include
interest in any amount of damages you find.

71
 Do not include in your answer any amount that you find Bill Head
d/b/a Bill Head Enterprises could have avoided by the exercise of
reasonable care. Consider the following elements of damages, if any, and
none other.

The jury then answered the damage question by awarding the following amounts:

Cost of the installation of the Underground Storage Tank system in 1996-
97. $ 0

Cost of the tank hole liner in 1997. $ 0

Attorney‘s fees for the defense of the Enforcement Action. $ 47,749.88

Cost of emergency clean-up of the release discovered in
November 2001. $ 94,127.50

Cost of past remediation of the Silver Spur site. $ 108,315.00

Cost of future remediation of the Silver Spur site. $ 560,450.00

Value of lost diesel as a result of the release discovered
in November 2001. $ 30,000.00

Cost of automatic tank gauge/leak detection system
installed in 1999. $ 7,500.00

Amount of the TNRCC fine. $ 0

Clearly, the jury in this case was instructed to consider each damage element

separately, as the jury in the Golden Eagle Archery case was instructed to do. See id.

at 770-71. Moreover, we are to presume the jury in this case followed the instructions

provided and did not award Head damages for any element more than once, unless the

record indicates otherwise; it does not here. See id. at 771; see also Columbia Rio

Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 862 (Tex. 2009) (―The jury is

presumed to have followed the court‘s instructions.‖); Sanchez v. Excelo Bldg. Maint.,

780 S.W.2d 851, 854 (Tex. App.–San Antonio 1989, no writ) (same). PSI has not

72
shown how it was harmed by the trial court‘s submission, other than speculating

hypothetically.

Based on our review of the record, we do not find any evidence to suggest that

the jury awarded Head overlapping damages or, in other words, provided Head with a

double recovery. As such, we cannot say that PSI has demonstrated an entitlement to

a new trial based upon overlapping damages. Accordingly, we overrule PSI‘s eleventh

issue.

VIII. PSI’S CONTRACT CLAIMS AGAINST HEAD

In its thirteenth issue, PSI argues that it is entitled to the rendition of judgment on

its contract claims against Head because there is no evidence to support the estoppel

defense raised by Head. Specifically, PSI challenges that the jury‘s finding that Head‘s

failure to pay PSI for its services was excused.

The jury found that Head failed to comply with his agreement to pay PSI for

materials and services provided and concluded that $57,527.49 would be fair

compensation for PSI as a result of the breach. However, the jury also concluded that

Head‘s failure to comply was excused. The charge stated that Head‘s failure to comply

was excused if:

1. Petroleum Solutions, Inc.

a. by words or conduct made a false representation or concealed
material facts,

b. with knowledge of the facts or with knowledge or information that
would lead a reasonable person to discover the facts, and

c. [w]ith the intention that Bill Head d/b/a Bill Head Enterprises would
rely on the false representation or concealment in action or
deciding not to act; and

73
 2. Bill Head d/b/a Bill Head Enterprises

a. did not know and had no means of knowing the real facts and

b. relied to his detriment on the false representation or concealment of
material facts.

In arguing that he was excused from paying PSI for the invoices presented for

repairs to the systems from 1997 to 2001, Head relied on the doctrine of estoppel. As

PSI notes, the ―burden of proving estoppel and the essential elements thereof is on the

party asserting it and the failure to prove any one or more of the elements is fatal.‖

Barfield v. Howard M. Smith Co. of Amarillo, 426 S.W.2d 834, 838 (Tex. 1968). The

supreme court further noted that ―the party asserting an estoppel must establish that he

relied on the misleading conduct to his detriment.‖ Petroleum Anchor Equip., Inc. v.

Tyra, 419 S.W.2d 829, 833 (Tex. 1967). However, we concluded earlier that the record

contains more than a scintilla of evidence to support the jury‘s fraud finding that Head

relied on the numerous false representations made by PSI, including the functionality of

the systems, inventory recordkeeping, and the cause of the leak, and suffered a

detriment in the amount of approximately $1 million in fines, costs, attorney‘s fees, and

expenses. See City of Keller, 168 S.W.3d at 810; see also Barfield, 426 S.W.2d at 838;

Tyra, 419 S.W.2d at 833. Because PSI‘s numerous representations caused Head

damages, we conclude that the evidence is sufficient to support the jury‘s finding that

Head was excused from performing under the agreements. See Barfield, 426 S.W.2d

at 838; see also Tyra, 419 S.W.2d at 833. Accordingly, we overrule PSI‘s thirteenth

issue.

IX. TITEFLEX’S CAUSES OF ACTION

74
 In its twelfth issue, PSI argues that Titeflex was not entitled to indemnification as

a matter of law because: (1) PSI is not a manufacturer under section 82.002(a) of the

civil practice and remedies code, see TEX. CIV. PRAC. & REM. CODE ANN. § 82.002(a); (2)

Titeflex was not sued as an innocent seller of PSI‘s product; (3) Head‘s claims fail; (4)

Titeflex‘s indemnity claims do not constitute a ―product liability action‖ and Titeflex did

not segregate its attorney‘s fees; and (5) if the underground storage tank system is

considered a ―product,‖ then PSI is entitled to a new trial. Titeflex counters that: (1) the

fact that the underground storage tank system can be considered an ―improvement‖ to

real property does not preclude a products liability action, nor the applicability of chapter

82 of the civil practices and remedies code; (2) PSI is a manufacturer and its duty to

indemnify Titeflex was triggered by the allegations contained in Head‘s pleadings, not

the outcome of the case; (3) the jury properly concluded that Titflex was an innocent

seller; (4) the trial court properly concluded that Titeflex was entitled to indemnity from

PSI for attorney‘s fees, expenses, and reasonable costs assessed by the jury; and (5)

PSI is not entitled to a new trial based on any contention that it was not permitted to

allocate blame to Titeflex.

A. Applicable Law

Section 82.002 of the civil practice and remedies code provides the following, in

relevant part:

(a) A manufacturer shall indemnify and hold harmless a seller
against loss arising out of a products liability action, except for
any loss caused by the seller‘s negligence, intentional
misconduct, or other act or omission, such as negligently
modifying or altering the product, for which the seller is
independently liable.

....

75
 (g) A seller is entitled to recover from the manufacturer court costs
and other reasonable expenses, reasonable attorney‘s fees,
and any reasonable damages incurred by the seller to enforce
the seller‘s right to indemnification under this section.

Id. § 82.002(a), (g). Section 82.001 defines a ―[p]roducts liability action‖ as:

any action against a manufacturer or seller for recovery of damages
arising out of personal injury, death, or property damage allegedly caused
by a defective product whether the action is based in strict tort liability,
strict products liability, negligence, misrepresentation, breach of express
or implied warranty, or any other theory or combination of theories.

Id. § 82.001(2) (West 2011). On the other hand, a ―[s]eller‖ is defined as ―a person who

engaged in the business of distributing or otherwise placing, for any commercial

purpose, in the stream of commerce for use or consumption a product or any

component part thereof.‖ Id. § 82.001(3). Section 82.001 defines a manufacturer as ―a

person who is a designer, formulator, constructor, rebuilder, fabricator, producer,

compounder, processor, or assembler of any product or any component part thereof

and who place the product or any component part thereof in the stream of commerce.‖

Id. § 82.001(4).

B. Discussion

As noted above, the jury concluded that PSI was a manufacturer and that Titeflex

was a seller within the context of chapter 82 of the civil practice and remedies code.

See id. § 82.001(3)-(4). Though they were not specifically asked to determine whether

PSI had a duty to indemnify Titeflex, the jury, by awarding Titeflex $382,334 in

reasonable attorney‘s fees and $68,519.62 in expenses, implicitly concluded that

Head‘s claims arose out of a products liability action and that PSI was required to

indemnify and hold harmless Titeflex for losses arising from Head‘s claims. See id. §

76
82.002(a), (g). The trial court, in its final judgment, noted that Titeflex was an innocent

seller. Further, the trial court awarded Titflex $12,393.25 in court costs.

1. Mixed Questions of Law and Fact

As a threshold matter, PSI argues that the jury‘s conclusions regarding

manufacturer and seller statuses under chapter 82 of the civil practice and remedies

code are immaterial because such determinations are questions of law. To support this

contention, PSI cites to the supreme court‘s decision in Fitzgerald v. Advanced Spine

Fixation Systems, Inc., 996 S.W.2d 864, 867 (Tex. 1999). We do not find the Fitzgerald

case supportive of PSI‘s contention.

In Fitzgerald, the supreme court analyzed an argument made by a manufacturer

―that the Legislature intended to deny indemnification to sellers who are not in the chain

of distribution from the manufacturer to the injured plaintiff.‖ Id. at 865. Specifically, the

manufacturer contended ―that prior case law and legislative history demonstrate that the

Legislature‘s purpose [in enacting section 82.002(a) of the civil practice and remedies

code] was to codify some aspects of our [the supreme court‘s] decisions and overrule

others, resulting in indemnity only for those seller in the chain of marketing or

distribution of the defective product from the manufacturer to the injured plaintiff.‖ Id.

The supreme court analyzed the construction of section 82.002(a) and concluded that

the manufacturer‘s argument conflicted with the intent of the Legislature. Id. at 867.

The court held that the unambiguous language of the statute did not require that a seller

be proved to have been in the specific chain of distribution; based on this interpretation

of the statute, the court implicitly concluded that the seller, Fitzgerald, was entitled to

indemnification from the manufacturer. Id. at 867, 869.

77
 In this case, the parties do not contend that section 82.002(a) is ambiguous; they

do not advance a novel interpretation of section 82.002(a); and the analysis of this issue

does not require resorting to the rules of statutory construction. Instead, our analysis of

PSI‘s arguments in this issue involves mixed questions of law and fact or, in other

words, an application of law to the facts. See Mega Child Care, Inc. v. Tex. Dep’t of

Protective & Regulatory Servs., 29 S.W.3d 303, 309 (Tex. App.–Houston [14th Dist.

2000] 2000) (―An issue involves a mixed question of law and fact when a standard or

measure has been fixed by law and the question is whether the person or conduct

measures up to that standard.‖), aff’d, 145 S.W.3d 170 (Tex. 2004); see also Tex. State

Secs. Bd. v. Miller, No. 03-06-00365-CV, 2009 Tex. App. LEXIS 5108, at *10 (Tex.

App.–Austin July 1, 2009, no pet.) (mem. op.). In determining whether PSI is a

manufacturer and whether Titeflex is an innocent seller, we must necessarily examine

the evidence adduced at trial and cannot make a determination solely by reference to

the law. See Mega Child Care, Inc., 29 S.W.3d at 309; see also Miller, 2009 Tex. App.

LEXIS 5108, at *10. Moreover, the trial court, in its final judgment adopting the jury‘s

findings, ostensibly concluded as a matter of law that PSI was a manufacturer and that

Titeflex was an innocent seller under section 82.001 of the civil practice and remedies

code. We, therefore, reject PSI‘s contention that the jury‘s answers regarding the

statuses of PSI and Titeflex are immaterial. In any event, we defer to the fact-finder‘s

factual determinations if they are supported by the evidence and review its legal

determinations de novo. Brainard v. State, 12 S.W.3d 6, 30 (Tex. 1999), overruled on

other grounds by Martin v. Amerman, 133 S.W.3d 262 (Tex. 2004).

2. Whether the Underground Storage Tank System Was an Improvement to
Real Property That Was Not Placed in the Stream of Commerce

78
 Next, PSI argues that it is not a manufacturer because the underground storage

tank system was an improvement to real property that was not placed in the stream of

commerce. Essentially, PSI challenges the characterization of the underground storage

tank system as a product placed into the stream of commerce in accordance with

chapter 82. PSI relies heavily on the holdings in Sonnier v. Chisholm-Ryder Co., 909

S.W.2d 475, 479 (Tex. 1995); Barbee v. Rogers, 425 S.W.2d 342, 346 (Tex. 1968);

Palmer v. Espey Huston & Associates, Inc., 84 S.W.3d 345, 356 (Tex. App.–Corpus

Christi 2002, pet. denied); Cecil v. T.M.E. Investments, Inc., 893 S.W.2d 38, 51 (Tex.

App.–Corpus Christi 1994, no pet.); and Hanselka v. Lummus Crest, Inc., 800 S.W.2d

665, 666 (Tex. App.–Corpus Christi 1990, no writ). PSI asserts that these cases stand

for the proposition that, as a matter of law, an underground storage tank system is not a

product in the stream of commerce. Titeflex argues that an improvement to real

property can still be considered a product within the context of chapter 82.

In Sonnier, the supreme court addressed the applicability of the statute of repose

stated in section 16.009 of the civil practice and remedies code. 909 S.W.2d at 479.

The Sonnier court distinguished between: (1) manufacturers of property who craft a

product that a third party later attaches to real property, thereby converting the product

into an improvement; and (2) manufacturers who actually work to attach the personalty

directly to the real property. Id. The Sonnier court specifically mentioned when ―an

attachment of personalty to realty becomes an improvement.‖ Id. Citing to Logan v.

Mullis, 686 S.W.2d 605, 607 (Tex. 1985), the Sonnier court stated three factors that are

relevant in determining whether personalty has become a permanent attached to realty:

(1) the mode and sufficiency of annexation, either real or constructive; (2) the

79
adaptation of the personalty to the use or the purpose of the realty; and (3) the intention

of the owner who causes the personalty to be attached to the realty. Id. ―The owner‘s

intent is critical because personalty does not constitute an improvement until it is

annexed to realty. To constitute an improvement there must be a joinder of personalty

with realty.‖ Id. Regardless of whether the underground storage tank system

constitutes a permanent fixture to realty, the Sonnier court did not explicitly state that an

improvement to real property cannot also be a product under chapter 82 of the civil

practice and remedies code; instead, the court analyzed whether the statue of repose

precluded suit. Id. at 483 (―Absent any evidence that Chisholm did more, we conclude

that Chisholm did not construct an ―improvement to real property” as contemplated by

section 16.009.‖) (emphasis added).

PSI cites the Barbee case for the contention that the underground storage tank

system installed at Head‘s truck stop was ―not a finished product offered to the general

public in regular channels of trade.‖ See 425 S.W.2d at 346. With respect to the nature

of the appellate complaints, the Barbee court noted that:

Respondents and the licensed optometrists in their employ exercise skill
and judgment in the examination, prescription[,] and fitting process[,]
whereby it is sought to remedy visual abnormalities by the use of curved
lenses or prisms. The failure here is not attributable to the product itself,
i.e., the contact lenses, but to the professional and statutorily authorized
act of ―measuring the powers of vision‖ of Petitioner‘s eyes and ―fitting
lenses . . . to correct or remedy . . . [his] defect or abnormal condition of
vision.‖ This is not the act of one selling a ―product in a defective condition
unreasonably dangerous to the user‖ in the terms of the Torts
Restatement. It is the act of one deemed in law to have the competence
to remedy a visual defect by furnishing particularly prescribed contact
lenses.

Id.

80
 In this case, Titeflex was sued on the theory of strict liability for allegedly

providing a defective flex connector to the system that PSI assembled and installed.

Because the Barbee case did not address indemnification or involve products ―in a

defective condition unreasonably dangerous to the user,‖ which served as the basis of

the complaints against Titeflex, we do not find the Barbee case to be persuasive in this

matter.

In Palmer, this Court addressed complaints pertaining to a breakwater in a

marina. See 84 S.W.3d at 349. Appellants brought suit after ―a series of storms with

prevailing northerly winds generated waves which overtopped or went under the

breakwater and caused damage to the docks and boats inside the marina.‖ Id. We

specifically noted that the design of the breakwater was done by a professional

architectural, engineering, and planning firm and that appellants‘ complaints centered

―on the design of the breakwater, not the construction of the breakwater or the

provisions of the parts thereof.‖ Id. at 349, 356. In determining whether the trial court

erred in granting appellees‘ motions for directed verdict, we noted that the breakwater

was not movable because it was a permanent improvement to the real estate and

ultimately concluded, for strict liability purposes, that the breakwater was not put into the

stream of commerce. Id. at 356.

PSI‘s reliance on the Palmer case is unfounded for several reasons. First, the

Palmer Court did not address the applicability of the indemnity provisions contained in

chapter 82 of the civil practice and remedies code, nor did the Palmer appellants assert

a right to indemnification or that the construction or usage of parts was problematic;

instead, we addressed appellants‘ design complaints. Second, the Palmer Court

81
emphasized that the breakwater was not movable and, thus, was not placed in the

stream of commerce. Id. Here, Barron testified that PSI is in the business of

assembling and installing underground storage tank systems and that each of the

double-walled, fiberglass storage systems is essentially the same for all of PSI‘s

customers. Barron‘s testimony undermines PSI‘s contention on appeal that ―the

underground storage system was ‗designed in the light of [Head‘s] particular needs.‘‖

See Barbee, 425 S.W.2d at 346. Moreover, the system at issue in this case is certainly

movable and was attached to realty, especially considering that the prior system, which

was similar to PSI‘s system, was removed from the premises and pieces of PSI‘s

system were removed for testing or replacement.

In Cecil, the trial court granted a directed verdict in favor of a company that

designed an Executive Health Spa pool. 893 S.W.2d at 50. The plaintiff complained

that the company‘s design of the pool was defective. Id. Essentially, the case pertained

to the company‘s manufacturing and installation of coping stones as a border around

the pool. The plaintiff complained that the coping-stone tiles were too slippery and

improperly installed on top of pre-existing tiles, creating an uneven surface that caused

the plaintiff to lose her balance as she walked along the pool side. Id. at 42. This Court

affirmed the trial court‘s directed verdict, concluding that the plaintiff had not raised an

evidentiary dispute regarding the company‘s knowledge of any danger in the design of

the pool. Id. at 51. Our ruling was not based on whether the coping stones were

products or whether the coping stones had been placed in the stream of commerce.

With respect to a concurrent marketing-defect claim brought by the plaintiff, the Cecil

Court concluded that there was no ―evidence that the coping stones were unreasonably

82
dangerous or that the absence of accompanying instruction or warnings caused Cecil‘s

injury.‖ Id. at 50. Based on our review of the case, we do not believe that the Cecil

case supports PSI‘s inference that a swimming pool, much less an underground storage

tank system, is not a product in the stream of commerce.28

Finally, PSI cites to our decision in the Hanselka case, which involved complaints

pertaining to sludge disposal system designed for waste-water disposal unit. 800

S.W.3d at 666. An employee of a needle coke plant fell and injured her back while

climbing on a ladder welded to a platform erected over a dumpster that contained

sludge. Id. This Court concluded that the claims brought by the employee pertained to

the design of the factory, which required the application of the principles of ordinary

negligence. Id. We noted that ―[t]his is not a product defect case in which, because

products have been put into the stream of commerce, strict liability applies.‖ Id.

Essentially, we concluded that a factory is not a product placed in the stream of

commerce. See id. PSI compares the factory and sludge disposal system in the

Hanselka case to the underground storage tank system in this case and argues that the

underground storage tank system was not placed in the stream of commerce.

28
The Cecil court did note, however, that any error in the design of the coping stones would raise
strict liability issues, but errors in the design of the pool must be addressed under theories of negligence.
Cecil v T.M.E. Invs., Inc., 893 S.W.2d 38, 51 (Tex. App.–Corpus Christi 1994, no pet.) (citing Wochner v.
Johnson, 875 S.W.2d 470, 475-77 (Tex. App.–Waco 1994, no writ) (distinguishing between negligence
and strict liability in a suit against the seller of materials and plans for the construction of a home);
Hanselka v. Lummus Crest, Inc., 800 S.W.2d 665, 666 (Tex. App.–Corpus Christi 1990, no writ)
(concluding that a cause of action based on the flawed design of a factory lies in negligence rather than
strict liability); Bennett v. Span Indus., Inc., 628 S.W.2d 470, 472-73 (Tex. App.–Texarkana 1981, writ
ref‘d n.r.e.) (holding that absent proof of a design defect involving roofing products, a roofing
manufacturer might be held liable only under negligence theories)). However, a negligence claim that is
properly joined with a products liability claim is to be considered part of the products liability action in
terms of a manufacturer‘s duty to indemnify an innocent seller, and the manufacturer is required to
indemnify the seller for any loss arising out of the action, except when there is a finding that the seller
independently caused the loss. Toyota Indus. Equip. Mfg. v. Carruth-Doggett, Inc., 325 S.W.3d 683, 690-
91 (Tex. App.–Houston [1st Dist.] 2010, pet. filed) (citing Meritor Automotive, Inc. v. Ruan Leasing Co., 44
S.W.3d 86, 87 (Tex. 2001)).

83
 We disagree that the factory and the underground storage tank system in this

case are similar. As previously mentioned, Barron testified that PSI assembles and

installs underground storage tank systems and that the each system is usually identical

or substantially similar to others assembled and installed. PSI markets itself as an

assembler and installer of underground storage tank systems. Unlike the underground

storage tank system in this case, the platform over the dumpster in the Hanselka case

appears to be unique to the customer and not something that is regularly sold to

numerous customers. See id. As such, we conclude that the Hanselka case is factually

distinguishable.

The supreme court has recently addressed, within the context of chapter 82,

whether synthetic stucco attached to a real property, a house, constituted a product to

which products-liability law applied. See Fresh Coat, Inc. v. K-2, Inc., 318 S.W.3d 893,

895 (Tex. 2010). The Fresh Coat court held that:

Under K-2‘s definition of product, products that become part of
homes cannot be the subject of indemnity claims by homebuilders and
their contractors if those homebuilders and contractors are sued by
homeowners. Instead, K-2 claims that products placed into the stream of
commerce are not products once they become integrated into a house,
which is real property, even if they were products for all purposes
beforehand. We agree with the court of appeals that Chapter 82 contains
no such limitation.

....

From that definition, a product is something distributed or otherwise
placed, for any commercial purpose, into the stream of commerce for use
or consumption.

We hold that the EIFS provided by Fresh Coat was a ―product‖ as
that word is used in the text of Chapter 82.[29]

29
The Fresh Coat Court noted that EIFS ―is a synthetic stucco system made of component parts
manufactured by [K-2].‖ Fresh Coat, Inc. v. K-2, Inc., 318 S.W.3d 893, 897 (Tex. 2010).

84
Id. at 897; see BLACK‘S LAW DICTIONARY 1245 (8th ed. 2004) (defining a ―product‖ as

―[s]omething that is distributed commercially for use or consumption and that is usu[ally]

(1) tangible personal property, (2) the result of fabrication or processing, and (3) an item

that has passed through a chain of commercial distribution before ultimate use or

consumption‖); see also RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 19

(1998) (―A product is tangible personal property distributed commercially for use or

consumption. Other items, such as real property and electricity, are products when the

context of their distribution and use is sufficiently analogous to the distribution and use

of tangible personal property . . . .‖).

In addition, the Fresh Coat Court cited to other Texas cases in which Texas

products-liability law applied to subcomponents of homes or, in other words, products

affixed to real property. 318 S.W.3d at 899 n.8 (citing Temple EasTex, Inc. v. Old

Orchard Creek Partners, Ltd., 848 S.W.2d 724, 731-32 (Tex. App.–Dallas 1992, writ

denied) (treating fiberboard as a product for purposes of products-liability claims);

Bennett v. Span Indus., Inc., 628 S.W.2d 470, 472 (Tex. App.–Texarkana 1981, writ

ref‘d n.r.e.) (noting that has there been a defect in a component installed in a building,

that defect might have supported a legitimate claim under products-liability law);

Cupples Coiled Pipe, Inc. v. Esco Supply Co., 591 S.W.2d 615, 615-16, 618 (Tex. Civ.

App.–El Paso 1979, writ ref‘d n.r.e.); Hovenden v. Tenbush, 529 S.W.2d 302, 305-06

(Tex. Civ. App.–San Antonio 1975, no writ) (treating used bricks in a building as

defective products after walls made with the bricks deteriorated)). Following the

analysis conducted by the Fresh Coat Court, we reject PSI‘s contention that the

attachment of the underground storage tank system to real property prevented it from

85
being considered product placed into the stream of commerce within the context of

chapter 82. See Fresh Coat, Inc., 318 S.W.3d at 897, 902 (―Chapter 82‘s text does not

limit ―product‖ to exclude items that may later become part of a house wall.‖).

3. Whether PSI is a Manufacturer Under Section 82.001(4)

As noted above, section 82.002(a) provides that a manufacturer shall indemnify

and hold harmless an innocent seller against loss arising out of a products liability

action. TEX. CIV. PRAC. & REM. CODE ANN. § 82.002(a). Relying on the plain language

of section 82.001(4) and the supreme court‘s decision in General Motors Corp. v.

Hudiberg Chevrolet, Inc., 199 S.W.3d 249, 256-57 (Tex. 2006), Titeflex contends that

PSI is a manufacturer. Section 82.001(4) defines a manufacturer as, among other

things, a ―designer . . . constructor, rebuilder, fabricator, producer . . . or assembler‖ of

any product that is placed in the stream of commerce. TEX. CIV. PRAC. & REM. CODE

ANN. § 82.001(4). In Hudiberg, the supreme court noted that ―all manufacturers are also

sellers, but not all sellers are manufacturers‖ and that:

Under the statute . . . the manufacturer of a component product alleged by
a claimant to be defective has a duty to indemnify an innocent
seller/manufacturer of a finished product which incorporates the
component from loss arising out of a products liability action related to the
alleged defect, but the manufacturer of an allegedly defective finished
product has a duty to indemnify the innocent seller/manufacturer of a
component product for the same loss.

199 S.W.3d at 256-57. Here, several witnesses testified that PSI designs, assembles,

and installs underground storage tanks for customers and that such actions are integral

to PSI‘s business. Witnesses also testified that PSI creates design plans with a listing

of component parts to be incorporated into the system. Titeflex‘s expert, Dr. Pinkston,

testified that, based on his extensive experience and his review of the record, the

86
underground storage tank system in this case is a product and that PSI is a

manufacturer because it designs, assembles, and installs the systems for customers.

On appeal, PSI argues that Dr. Pinkston‘s testimony should be disregarded because his

testimony is conclusory, and he is not qualified to testify about a purely legal question.

First, we note that PSI did not object at trial to Dr. Pinkston‘s qualifications, his

methodology, or his ability to testify about the issues in this case. To the extent that PSI

objects to Dr. Pinkston‘s qualifications on appeal, we conclude that such arguments

have been waived. See Borg-Warner Corp. v. Flores, 232 S.W.3d 765, 769 n.11 (Tex.

2007) (―We note initially that Borg-Warner did not challenge, either before trial or at the

time the evidence was offered, the reliability of Flores‘s experts and has, therefore,

waived any reliability challenge that would require us to evaluate the experts‘ underlying

methodology, technique, or foundational data.‖) (citing Coastal Transp. Co. v. Crown

Cent. Petroleum Corp., 136 S.W.3d 227, 231-33 (Tex. 2004)). Second, as we

concluded earlier, whether PSI is a manufacturer and whether Titeflex is an innocent

seller are mixed questions of law and fact. An expert witness may state an opinion on

mixed questions of law and fact. See In re Christus Spohn Hosp. Kleberg, 222 S.W.3d

434, 440 (Tex. 2007); Birchfield v. Texarkana Mem’l Hosp., 747 S.W.2d 361, 365 (Tex.

1987) (―Fairness and efficiency dictate that an expert may state an opinion on a mixed

question of law and fact as long as the opinion is confined to the relevant issues and is

based on proper legal concepts.‖); Louder v. DeLeon, 754 S.W.2d 148, 149 (Tex.

1988). Therefore, in reviewing the evidence in the light most favorable to the jury‘s

findings, we conclude that a rational juror, based on the plain language of section

82.001(4) and the abundance of relevant evidence in the record, could have concluded

87
that PSI is a manufacturer under section 82.001(4). See TEX. CIV. PRAC. & REM. CODE

ANN. § 82.001(4); see also Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271

S.W.3d 238, 248 (Tex. 2008); Brainard, 12 S.W.3d at 30.

4. Whether Titeflex is an Innocent Seller Under Section 82.001(3)

A seller under section 82.001(3) of the civil practice and remedies code is an

entity ―engaged in the business of distributing or otherwise placing, for any commercial

purpose, in the stream of commerce for use or consumption a product or any

component part thereof.‖ TEX. CIV. PRAC. & REM. CODE ANN. § 82.001(3). ―Anyone who

qualifies as a ‗seller‘ may seek indemnification, subject to the limitations of section

82.002(a).‖ Fitzgerald, 996 S.W.2d at 867. The limitation of section 82.002(a) is that

the seller must be innocent of any ―negligence, intentional misconduct, or other act or

omission, such as negligently modifying or altering the product, for which the seller is

independently liable.‖ TEX. CIV. PRAC. & REM. CODE ANN. § 82.002(a); see Owens &

Minor, Inc. v. Ansell Healthcare Prods., Inc., 251 S.W.3d 481, 482 (Tex. 2008).

The record reflects that Titeflex makes and sells a type of flex connector that is a

component part in a finished underground storage tank system. In fact, Barron certified

to the TRNCC and testified at trial that the alleged faulty flex connector in this case was

manufactured and sold by Titeflex, though Barron‘s assertions were hotly disputed. PSI

was unable to produce the faulty flex connector that was removed from Head‘s

underground storage tank system; and Barron was unable to produce handwritten notes

that he alleged described the faulty flex connector as having been manufactured and

sold by Titeflex. Pictures of the faulty flex connector were admitted at trial, and experts

described the flex connector as having been manufactured and sold by Resistoflex.

88
Nevertheless, both PSI and Head sued Titeflex, based on PSI‘s assertions that the

cause of the leak was the flex connector manufactured and sold by Titeflex. Later,

Head discovered that there was no evidence indicating that Titeflex was at fault; thus,

Head non-suited his claims against Titeflex. It was not until much later did PSI non-suit

its third-party claims against Titeflex, only after PSI failed to produce the alleged faulty

flex connector, Barron‘s handwritten notes, and Dr. Corneilissen‘s expert testimony on

Titeflex‘s purported liability in the case. Essentially, other than Barron‘s own

statements, there is no evidence that Titeflex was at fault for the leak, a contention that

is supported by the fact that all claims against Titeflex were eventually non-suited. The

jury ultimately concluded that Titeflex was a seller, and the trial court, in its final

judgment, specifically noted that Titeflex was an innocent seller within the context of

chapter 82.

Viewing the evidence is the light most favorable to the jury and the trial court‘s

findings, we conclude that a rational fact-finder, based on the plain language of section

82.001(3) and the abundance of relevant evidence in the record, could have concluded

that Titeflex is an innocent seller under section 82.001(3). See TEX. CIV. PRAC. & REM.

CODE ANN. § 82.001(3); see also Hogue, 271 S.W.3d at 248; Brainard, 12 S.W.3d at 30.

5. Product Liability Actions

Despite having concluded that PSI is a manufacturer and Titeflex is a seller

under chapter 82, we must now determine whether the underlying causes of action

against Titeflex were products liability actions entitling Titeflex to indemnification.

Section 82.001(2) of the civil practice and remedies code defines a ―[p]roducts liability

action‖ as ―any action against a manufacturer or seller for recovery of damages arising

89
out of . . . property damage allegedly caused by a defective product whether the action

is based in strict tort liability, strict products liability, negligence, misrepresentation,

breach of express or implied warranty, or any other theory or combination of theories.‖

TEX. CIV. PRAC. & REM. CODE ANN. § 82.001(2); see JCW Elecs., Inc. v. Garza, 257

S.W.3d 701, 705 (Tex. 2008); see also HCA Health Servs. of Tex., Inc. v. Danek Med.,

Inc., No. 13-03-00556-CV, 2005 Tex. App. LEXIS 8408, at **5-7 (Tex. App.–Corpus

Christi Oct. 13, 2005, no pet.) (mem. op.).

In its third-party action against Titeflex, PSI alleged the following:

The underground flex connector was defective to such a degree as to
render it unreasonably dangerous, and it reach[ed] Petroleum Solutions,
without substantial change in its condition from the time it was originally
sold. The defect cause[d] the changes alleged by Plaintiff [Head].
Therefore, Titeflex is strictly liable under products liability law . . . . Titeflex
is strictly liable to Petroleum Solutions, and the plaintiff for his injuries,
damages, if any, under products liability law.

(Emphasis added.) Like PSI, Head also alleged a products-liability action against

Titeflex: ―As stated in the third[-]party action, Petroleum Solutions purchased the

underground flex connector from Titeflex. Titeflex manufactured the flex connector.

Titeflex is strictly liable for damages caused by the defective flex connector.‖

In Meritor Automotive, Inc. v. Ruan Leasing Co., the supreme court held that ―the

manufacturer‘s duty to indemnify the seller is invoked by the plaintiff‘s pleadings and

joinder of the seller as defendant.‖ 44 S.W.3d 86, 91 (Tex. 2001); see Hudiberg

Chevrolet, Inc., 199 S.W.3d at 256 (―The duty to indemnify is triggered by the injured

claimant‘s pleadings.‖); see also Owens & Minor, Inc., 251 S.W.3d at 484. Thus, we

look to Head‘s pleadings to determine whether PSI, the manufacturer, had a duty to

indemnify Titeflex, the innocent seller. See Equitable Recovery, L.P. v. Health Ins.

90
Brokers of Tex., L.P., 235 S.W.3d 376, 387 (Tex. App.–Dallas 2007, pet. denied)

(―Contribution and indemnity are methods by which the burden of paying damages to a

plaintiff is shifted from one defendant to another, both of whom are jointly liable to the

plaintiff on the same claim. It follows that no right of contribution or indemnity exists

unless the plaintiff has a claim against the co-liable parties. In other words, contribution

and indemnity are not independent claims but are ―derivative‖ of the plaintiff‘s claims

against each co-liable party. There can be no contribution or indemnity between two

parties based on a direct claim between them.‖) (emphasis in original) (citations

omitted).

Based on our reading of section 82.001(2) and related case law, we conclude

that the claims brought against Titeflex constituted products-liability actions and

because Titeflex was an innocent seller, it was entitled to indemnification from PSI, the

manufacturer. See TEX. CIV. PRAC. & REM. CODE ANN. § 82.001(2); Garza, 257 S.W.3d

701, 705 (Tex. 2008); see also Danek Med., Inc., 2005 Tex. App. LEXIS 8408, at **5-7.

6. The Relationship Between Titeflex’s indemnification Claims and Head’s
Claims Against PSI

Nevertheless, PSI argues that Titeflex‘s indemnification claims should fail

because Head‘s claims against PSI fail. First, we have already affirmed the jury‘s

conclusions as to Head‘s claims against PSI. Second, section 82.002(e)(1) provides

that a manufacturer‘s duty to indemnify an innocent seller ―applies without regard to the

manner in which the action is concluded.‖ TEX. CIV. PRAC. & REM. CODE ANN. §

82.002(e)(1); see Owens & Minor, Inc., 251 S.W.3d at 483 (―Thus, under Section

82.002, the manufacturer is now liable to the seller regardless of how the injury action is

resolved.‖); see also Hudiberg Chevrolet, Inc., 199 S.W.3d at 255 (―However, the duty

91
to indemnify does not depend on an adjudication of the indemnitor’s liability, as it does

under the common law. This follows from section 82.001(e)(1), which states that ‗the

duty to indemnify under this section . . . applies without regard to the manner in which

the action is concluded‖—whether by judgment, settlement, or dismissal.‖) (emphasis in

original) (footnote omitted). Thus, we reject PSI‘s contention that Titeflex‘s claims

should fail because Head‘s claims fail, because the resolution of Head‘s claims is

irrelevant to the analysis of Titeflex‘s indemnification claims.

7. The Segregation of Titeflex’s Attorney’s Fees

PSI also argues that there is legally insufficient evidence of Titeflex‘s segregated

attorney‘s fees and expenses. Specifically, PSI alleges that Titeflex‘s recovery of

$450,853.62 (the sum of the reasonable attorney‘s fees and expenses awarded by the

jury) ―cannot be upheld as a ‗loss arising out of a product liability action.‘‖ See TEX. CIV.

PRAC. & REM. CODE ANN. § 82.002(a). PSI also contends that Titeflex ―was required to

segregate out the fees associated with its defense of PSI‘s claim for contribution and

indemnity, and the fees associated with its defense of plaintiff‘s [Head‘s] claims against

it as the manufacturer of the Titeflex flex connector.‖ See Tony Gullo Motors I, L.P. v.

Chapa, 212 S.W.3d 299, 314 (Tex. 2006). Titeflex asserts that there is sufficient

evidence in the record to demonstrate that PSI was required to indemnify Titeflex for

court costs, reasonable attorney‘s fees, and expenses. See TEX. CIV. PRAC. & REM.

CODE ANN. § 82.002(a)-(b), (g); see also Hudiberg Chevrolet, Inc., 199 S.W.3d at 256.

At the outset of our analysis, we note that PSI has not directed us to a portion of

the record demonstrating that an objection was made to Titeflex‘s purported failure to

segregate its attorney‘s fees and expense requests. PSI‘s counsel questioned both of

92
Titeflex‘s attorneys, Thomas A. Cowen and George E. Petersmarck, about the

segregation of their attorney‘s fees and expenses; however, no objection was made.

See Holmes, 115 S.W.3d at 313 (citing TEX. R. CIV. P. 274; Solis, 951 S.W.2d at 389;

Hruska, 747 S.W.2d at 785; Dieterich, 270 S.W.3d at 705-06; Lesikar, 33 S.W.3d at

317); see also Norrell, 1 S.W.3d at 303-04. Because PSI did not object to the

segregation of Titeflex‘s attorney‘s fees and expenses, we conclude that PSI‘s

segregation contention was waived. See Solis, 951 S.W.2d at 389; Dieterich, 270

S.W.3d at 705-06; Norrell, 1 S.W.3d at 303-04. We now turn to PSI‘s sufficiency

argument pertaining to Titeflex‘s attorney‘s fees and expense requests.

Section 82.002(g), which provides that a seller is entitled to recover from a

manufacturer court costs, other reasonable expenses, and reasonable attorney‘s fees,

is the procedural vehicle by which Titeflex sought to procure reasonable attorney‘s fees

and expenses. See TEX. CIV. PRAC. & REM. CODE ANN. § 82.002(g). ―As a general rule,

the party seeking to recover attorney‘s fees carries the burden of proof.‖ Stewart Title

Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991). A determination of reasonable

attorney‘s fees is a question for the trier of fact. Id. at 12. Factors that a fact-finder

should consider when determining the reasonableness of a fee include: (1) the time

and labor required, the novelty and difficulty of the questions involved, and the skill

required to perform the legal service properly; (2) the likelihood that the acceptance of

the particular employment will preclude other employment by the lawyer; (3) the fee

customarily charged in the locality for similar legal services; (4) the amount involved and

the results obtained; (5) the time limitations imposed by the client or by the

circumstances; (6) the nature and length of the professional relationship with the client;

93
(7) the experience, reputation, and ability of the lawyer or lawyers performing the

services; and (8) whether the fee is fixed or contingent on results obtained or

uncertainty of collection before the legal services have been rendered. See Arthur

Andersen & Co. v. Perry Equip Corp., 945 S.W.2d 812, 818 (Tex. 1997). Evidence of

each of the Andersen factors is not required to support an award of attorney‘s fees, and

an attorney‘s fees expert ―may testify that he reviewed an attorney‘s file and offer an

opinion that the fees charged for that work were reasonable and necessary.‖ Dieterich,

270 S.W.3d at 706.

Titeflex was represented by counsel from Michigan, Petersmarck, and by local

counsel, Cowen. Petersmarck testified that he and his firm worked 1,032 hours on this

case; and that he charged $160 per hour while his associates billed at $140 per hour.

Cowen, on the other hand, noted that his firm worked 701 hours on this case; his firm‘s

attorneys billed at $150 per hour; and his paralegals billed at $75 per hour. Petersmarck

stated that the total amount of attorney‘s fees incurred by both firms was $382,334, and

the total amount of expenses incurred was $68,519.62. Petersmarck testified that both

he and Cowen had their attorney‘s fees audited by third parties, including Titeflex‘s

comptroller, and the third parties concluded that the requests were appropriate and

reasonable. Detailed billing statements for the work done by Petersmarck and Cowen‘s

firms were admitted into evidence for the jury to review and evaluate. These statements

reflected the nature of the services rendered, the date of service, the length of time

spent on the case, applicable billing rates, and the fees and costs incurred for the

services rendered. Both Cowen and Petersmarck testified that they did not charge

Titeflex for all the work that was necessary to prepare to defend both PSI and Head‘s

94
lawsuits and that their hourly rates were reasonable for the locale—Hidalgo county. PSI

did not present any expert testimony to refute the attorney‘s fees and expenses

requested by Titeflex; instead, PSI relied solely on cross-examination. And at a pre-trial

hearing, Titeflex presented uncontroverted argument that it incurred $12,393.55 in court

costs; the trial court, in its discretion, ordered PSI to reimburse Titeflex for all of its court

costs.

Though PSI waived its segregation contention, on cross-examination, counsel for

PSI questioned Petersmarck about whether the attorney‘s fees requested by Titeflex

were segregated between the lawsuit PSI filed against Titeflex and the lawsuit filed

against Titeflex by Head. See Osborne v. Jauregui, Inc., 252 S.W.3d 70, 76 (Tex.

App.–Austin 2008, pet. denied) (noting that the extent to which attorney‘s fees can be

segregated is a mixed question of law and fact); see also Birchfield, 747 S.W.2d at 365

(stating that an expert may testify to ultimate issues which are mixed questions of law

and fact). To this question Petersmarck responded that he and Cowen were unable to

segregate the attorney‘s fees because ―it‘s all intertwined.‖ PSI‘s counsel then

questioned Petersmarck about Titeflex‘s defense of Head‘s lawsuit to which

Petersmarck responded that Head never submitted any discovery and any defense

costs incurred in defending the Head lawsuit pertained to filing an answer to Head‘s

petition.

Considering all of the evidence in the light most favorable to the verdict and

indulging every reasonable inference from that evidence in support of the verdict, we

conclude that legally sufficient evidence exists to uphold the award of attorney‘s fees,

court costs, and expenses. See City of Keller, 168 S.W.3d at 827; see also Dieterich,

95
270 S.W.3d at 706. Furthermore, in reviewing the evidence in a neutral light, we cannot

conclude that the jury‘s attorney‘s fees, court costs, and expense awards were so

contrary to the overwhelming weight of the evidence as to be clearly wrong or unjust.

See Cain, 709 S.W.2d at 176; see also Dieterich, 270 S.W.3d at 706.

8. PSI’s Entitlement to a New Trial

Finally, PSI argues that it is entitled to a new trial on Titeflex‘s claims because

the trial court‘s sanctions order—striking PSI‘s proportionate responsibility and

responsible third party defenses—deprived PSI from trying the issue of Titeflex‘s

―innocence.‖ We disagree.

The record does not contain any evidence indicating that Titeflex was none other

than an innocent seller. PSI failed to produce the alleged faulty flex connector; the

pictures admitted into evidence did not demonstrate that Titeflex had manufactured the

alleged faulty flex connector; Barron was unable to produce his handwritten notes

allegedly detailing that the flex connector that was removed from under fourth dispenser

was manufactured by Titeflex; and Titeflex failed to present expert testimony regarding

Titeflex‘s fault in this matter. In fact, PSI‘s expert, Corneilssen, failed to appear for his

deposition. As a result of the dearth of evidence implicating Titeflex, both Head and PSI

non-suited Titeflex. Moreover, the trial court‘s sanctions order did not prevent PSI from

calling witnesses to refute Titeflex and Head‘s claims, including Head‘s negligence,

breach of warranty, and breach of contract claims, and to establish that Titeflex was not

an innocent seller within the context of sections 82.001(3) and 82.002(a). See TEX. CIV.

PRAC. & REM. CODE ANN. §§ 82.001(3), 82.002(a). In addition, we have already

concluded that the trial court did not abuse its discretion in issuing its sanctions order.

96
 Based on lack of evidence implicating Titeflex, we cannot say that PSI is entitled

to a new trial to dispute Titeflex‘s status as an ―innocent seller‖ under section 82.002(a).

See id. § 82.002(a); see also Hudiberg Chevrolet, Inc., 199 S.W.3d at 255 (―To escape

this duty to indemnify, the indemnitor must prove the indemnitee‘s independent

culpability.‖); Ruan Leasing Co., 44 S.W.3d at 91 (―[I]t must be established that seller‘s

conduct ‗caused‘ the loss.‖); The Charles Machine Works, Inc. v. Butler Rental & Sales,

Inc., 327 S.W.3d 779, 787 (Tex. App.–Corpus Christi 2010, pet. filed) (―An inference is

insufficient to establish the exception to a manufacturer‘s duty to indemnify; instead, to

invoke the exception, a manufacturer must prove: (1) that the seller was independently

culpable and (2) that the seller‘s conduct ―caused the loss.‖) (emphasis in original).

Having rejected all of PSI‘s contentions pertaining to Titeflex, we overrule PSI‘s twelfth

issue.

X. CONCLUSION

We reverse and remand for recalculation of pre-judgment interest, if necessary.

We affirm the trial court‘s judgment in all other respects.

__________________
ROGELIO VALDEZ
Chief Justice

Dissenting Memorandum Opinion by Justice Vela.

Delivered and filed the
29th day of April, 2011.

97