Four J's Community Living Center, Inc. and Anthonia Uduma v. Patti J. Wagner, as Guardian of Jenny Ann Wagner, an Incapacitated Adult

Opinion issued May 20, 2021

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-19-00346-CV
———————————
FOUR J’S COMMUNITY LIVING CENTER, INC. AND ANTHONIA
UDUMA, Appellants
V.

PATTI J. WAGNER, AS GUARDIAN OF JENNY ANN WAGNER, AN
INCAPACITATED ADULT, Appellee

On Appeal from the 269th District Court
Harris County, Texas
Trial Court Case No. 2009-40925

OPINION

Appellants, Four J’s Community Living Center, Inc. (“Four J’s”) and

Anthonia Uduma, challenge the trial court’s judgment, entered after a jury trial, in
favor of appellee, Patti J. Wagner, as guardian of Jenny Ann Wagner (“Jenny”), an

incapacitated adult, in Wagner’s suit for negligence. In three issues, Four J’s and

Uduma contend that the evidence is legally insufficient to support the jury’s finding

that Uduma is personally liable for negligence either as a landlord or as an agent of

Four J’s, the evidence is factually insufficient to support the jury’s award of damages

for past and future disfigurement and past and future physical pain and mental

anguish, and the trial court erred in not applying the damages cap under Texas Civil

Practice and Remedies Code section 74.301 as to Four J’s.1

We affirm.

Background

In her second amended petition, Wagner, Jenny’s mother and legal guardian,

alleged that on September 4, 2008, Jenny was severely burned in a fire at a

four-bedroom residential care facility (“the facility”) for disabled adults, operated

by Four J’s and Uduma, the president, chief executive officer, and sole shareholder

of Four J’s and the owner of the facility, which she leased to Four J’s. Jenny, a

resident of the facility, was thirty-five years old when the fire occurred. She has

been legally blind since infancy, has cerebral palsy, and is profoundly intellectually

disabled. Jenny shared the facility with three other adult residents. Jenny and

1
See TEX. CIV. PRAC. & REM. CODE ANN. § 74.301 (“Limitation on Non[-]economic
Damages”).
2
another resident, Tanya James (“Tanya”), both “had the mental capacity of small

children.” The two other residents, Elisha Campbell and Esperanza Arzola, had

milder intellectual disabilities but serious mental illnesses.

Wagner alleged that on September 4, 2008, Four J’s and Uduma inadequately

supervised Arzola, who obtained a cigarette lighter and started a fire in her bedroom

at the facility. When the fire spread to the rest of the facility, Jenny, who was

wheelchair-bound and incapable of escaping the fire without assistance, sustained

smoke-inhalation injuries and second- and third-degree burns to her face, neck,

chest, arms, and hands. She was hospitalized in a burn-trauma center for one month

and endured painful treatments. The burns permanently scarred and disfigured

Jenny. Tanya, who was also severely burned in the fire, died from her injuries.

Wagner brought negligence claims against Four J’s and Uduma. She asserted

that Four J’s and Uduma breached the standard of care for a residential care facility

by inadequately supervising Arzola; failing to equip the facility with properly

functioning fire-detection and prevention systems, such as smoke detectors and

overhead sprinkler systems; and failing to adequately train staff members to respond

to a fire at the facility. And because it was reasonably foreseeable that if a resident

came into possession of a cigarette lighter, a fire would likely result, Four J’s and

Uduma breached their duty to ensure that Jenny was safe from foreseeable harm

caused by other residents who were unable to understand the dangers of incendiary

3
devices. The sole staff member on duty at the time of the fire, Amuche Chinelo

Udemezue, had run from the facility without trying to assist Jenny. Wagner also

asserted that the breaches of the standard of care by Four J’s and Uduma proximately

caused Jenny to inhale smoke and sustain second- and third-degree burns, a

month-long hospitalization, painful debridement of wounds, tube feeding due to

inhalation injuries, and permanent scarring and disfigurement. And Uduma was

jointly and severally liable for the wrongful and negligent conduct of Four J’s

because it is her alter ego.

Four J’s and Uduma answered, generally denying Wagner’s allegations and

asserting various affirmative defenses, including that their actions and omissions did

not constitute “a proximate or producing cause” of Jenny’s injuries. Rather, Jenny’s

injuries were caused by “the intervening actions of an independent, responsible third

party,” namely Arzola, “who started the fire in question.” Four J’s and Uduma also

asserted that the damages cap in Texas Civil Practice and Remedies Code section

74.301 applied to this case.

At trial, Wagner testified that Jenny has been diagnosed with spastic cerebral

palsy affecting all four limbs; she has only minor use of one hand. She has severe

to profound intellectual disability and is legally blind. Jenny has used a wheelchair

since she was three years old.

4
Jenny has a habit of talking to herself “in kind of strange ways.” She can

express her needs in one- or two-word responses to questions. For example, if she

is asked, “Are you hungry?” she can answer, “Yes.” And Jenny can make simple

choices. For example, if Wagner asks her, “Do you want a hamburger, or do you

want a cheeseburger?” she will answer “hamburger” or “cheeseburger.”

Occasionally when she means “yes,” she will repeat the question. If she means “no,”

she says “no.” The way Jenny communicates suggests that “she has more

understanding than expressive language.”

Wagner first learned Jenny was in the hospital the morning after the fire.

Wagner went directly to the hospital and found out that Jenny “was already in the

burn [intensive care unit (“ICU”)] upstairs.” When Wagner reached the ICU, she

found Jenny unconscious and “propped up” in a hospital bed. Jenny “had bandages

that went around her head and covered the whole side of her . . . face” and neck.

And she had bandages covering “both arms and hands” and “bandages around her

chest.” Jenny was “on a respirator” and had a “tube coming out of her that was

connected to . . . a vacuum pump, and it was pumping . . . blood and black soot out

of her lungs.” She had a feeding tube, an intravenous line in her groin, and “was on

a morphine drip.” Jenny was also connected to a heart monitor, had an oxygen

monitor on her finger, and had “a blood pressure cuff . . . on her ankle.”

5
When Jenny was well enough to undergo surgery, the doctors removed seven

strips of skin from Jenny’s thighs, which they used for skin grafts on her left breast,

upper right arm, left hand, left wrist, and across her abdomen. Jenny also had burns

on her neck and the right side of her face, her right eyelid, and her right ear. In some

of those places, where the burns were less extensive, the doctors cut out the burned

skin, stretch the incision closed, and staple it shut.

While in the hospital, Jenny was kept unconscious and on the respirator for

two weeks. Wagner would visit Jenny during the daytime. But “[i]n the evening,

they—they tell the family, ‘You might as well go home’ because that’s when they

do the debridement, scrap[ing] the dead skin off from the burns” and “they don’t

want” family members to see that painful process. In addition, the hospital staff

“would close down the center” twice a day when “they would remove

bandages, . . . clean the wounds[,] and then replace bandages.”

After Jenny’s respiratory tube and feeding tube were removed, and hospital

staff “started giving her food by mouth,” Wagner “could hear Jenny grinding her

teeth,” a behavior that Wagner understood as meaning “that [Jenny] was very

uncomfortable and in pain in some way.”

When Jenny was released from the hospital in early October 2008, Wagner

brought her to Wagner’s apartment. Wagner has been Jenny’s caretaker, since the

fire, which is “a full-time job.” Wagner and her sister had to learn “how to do the

6
bandage changes,” “administer [Jenny’s] . . . medication, [and] make sure

everything was cleaned and sterile.” They had to change Jenny’s diapers and give

her sponge baths. A visiting nurse came in every morning to take care of the skin

grafts and to monitor Jenny’s vital signs and conditions. Jenny took Vicodin for

pain “[e]very four hours for probably the first two weeks” after her release, “at least,

and then maybe every six hours thereafter.” When Jenny stopped taking Vicodin,

“[s]he had severe hot flashes.” She “would become drenched” in sweat and was

restless and unable to sleep.

During Wagner’s testimony, the jury saw Jenny in person and photographs

showing the scars Jenny has from the injuries she suffered because of the fire.

Wagner explained that Jenny has keloid scarring on the right side of her face, under

her chin, and along her jawline. Significant scarring also extends from her right

shoulder all the way down her arm. And she has large scars across her abdomen.

The “donor sites,” where the strips of skin were removed from her thighs for grafting

over other areas, also have extensive scarring.

According to Wagner, Jenny “will always” have “problems at the sites of the

skin grafts.” She must have moisturizing cream applied to those areas a few times

every day because if the skin there “becomes dry, it will crack.” And if Jenny

becomes too hot, her thighs redden and become “sore, like a sunburn.”

7
Since the fire, Jenny has not slept in a bed. Wagner believes that Jenny

associates the bed with being in pain. If she is placed in a bed, she will not fall

asleep. Instead, she sleeps in a recliner. Because pressure on the scar tissue by

Jenny’s right ear can be painful, Wagner has “to be very careful” to avoid putting

pressure on that ear. Wagner places blankets underneath Jenny’s right ear “to

cushion it and to help keep her head more in alignment when she sleeps.”

And since the fire, certain sounds, like sirens, will “startle [Jenny]

excessively” and cause her to have muscle spasms. And on occasion, Wagner has

heard Jenny ask, “Is Tanya crying?”

The trial court admitted into evidence copies of medical records documenting

Jenny’s treatment after the fire. They show that Jenny’s lungs were injured from

smoke inhalation, and she had “second[-] and third[-]degree burns” to her face,

“chest, abdomen, and hands,” covering twenty percent of her “total body surface

area.” She endured debridement, among other treatment procedures, and she

underwent “surgery for skin grafts on her chest, abdomen, and hands.” Risks and

hazards associated with these procedures included “bleeding, pain,” and

“inflammation.” The hospital staff could not assess Jenny’s pain using the pain scale

because she was “nonverbal.”

Udemezue testified that she began working for Four J’s in 2007. Her training

included watching a “CD” and working with another staff member for two days

8
before being left to work alone at the facility. Four J’s did not give Udemezue keys

to any of the doors at the facility. Instead, a Four J’s van driver would routinely

drive her to the facility, and he would unlock the front door to let her inside. The

sliding-glass door in the back of the facility was the only other outside door. But the

sliding-glass door had a deadbolt lock that required a key to open it from the inside,

and Udemezue did not have that key. Udemezue noted that the garage door of the

facility did not properly function and would fall down if someone tried to use it. On

trash pick-up days, staff members had to carry the trash from the garage, through the

living room, and out the front door to get it to the curb.

Udemezue explained that when she began working at the facility, there were

three residents: Jenny, Tanya, and Arzola. Later, a fourth resident, Campbell,

moved in. Udemezue routinely supervised the four residents on her own. She had

to “do virtually everything” for Jenny, who needed “total care.” She and Jenny had

a good relationship, and Jenny used to sing for Udemezue. Tanya also needed “total

care,” including assistance with bathing and brushing her teeth. Although Tanya

could feed herself, she had to be prompted to complete basic tasks. Tanya was also

“fond of hitting herself,” and she would “hurt herself most of the time” if her hands

were not kept separated. And Arzola, according to Udemezue, was “something

else”; she was aggressive and “acted up all the time.” Arzola often would damage

9
property and run away from the facility. Udemezue was “very scared” of Arzola.

Campbell was also aggressive and difficult for Udemezue to manage.

On the day of the fire, Udemezue was working in Jenny’s room when Arzola

came in and tried to help her care for Jenny. Concerned about how Arzola was

handling Jenny, Udemezue directed her to return to her bedroom. Arzola became

angry but complied. A little later, Udemezue heard a “big bang.” She went to

Arzola’s bedroom and saw that Arzola had broken a window. Udemezue telephoned

a case manager to report Arzola’s conduct, but she was unable to reach him. She

also telephoned a nurse, who told her how to treat the cuts that Arzola had sustained

in breaking the window. While Udemezue was treating Arzola’s cuts, Arzola

calmed down and apologized. As they were talking, Udemezue heard sirens and

looked outside. She mentioned to Arzola that it appeared that a house at the end of

the road was on fire.

Later, while Udemezue was washing clothes, she heard another “big bang.”

Thinking that something had occurred outside, she rushed out the front door to

investigate. Once outside, she looked through Arzola’s bedroom window, which

was next to the front door, and realized that Arzola’s room was on fire. Udemezue

rushed back inside, pulled Campbell from her bedroom, and led her outside.

Udemezue then went back inside the facility toward Jenny’s and Tanya’s bedrooms.

But she realized that the fire was very close to the front door and she did not have a

10
key to the back door. She also knew that the garage door did not function. With

access to only one door to the outside, Udemezue knew that “[i]f the fire g[ot] to that

front door, that’s it.” They were “finished.” Udemezue panicked. She yelled to

Arzola and together they ran from the house. Udemezue telephoned for emergency

assistance and shouted for help from neighbors, and then she “passed out.” When

she awakened, she was inside an ambulance.

Udemezue testified that she had panicked during the fire because she had only

“one exit.” And she “would have tried [her] best if [she had] had another door in

that house.” She also noted that she was alone, and she believed there would have

been a better outcome had she had help from at least one other staff member.

According to Udemezue, Four J’s provided her with fire-emergency training

on two occasions through drills, but she was only trained to exit through the front

door. Neither drill covered how to use a fire extinguisher or how to evacuate Jenny

by wrapping her in a blanket and carrying her out of the facility.

Chiaka Irondi testified that from 2006 to February 2008, she worked for Four

J’s at the facility. Four J’s did not provide Irondi with any fire-emergency training,

but it required her to sign a statement that she had received such training. Irondi

noted that the back door of the facility could not be opened without a key. That key,

at some point before Irondi left, had been lost. She had reported its loss to Four J’s.

11
The facility’s garage door was also inoperative: it had to be held up to allow a person

to pass underneath it if the person needed to enter or exit through the garage.

Kevin Kern, the Director of Residential Services for The Center in Houston,

a social service agency that provides residential vocational services for persons with

intellectual and developmental disabilities, testified as an expert about the standard

of care applicable to facilities that provide residential services to persons with

intellectual and developmental disabilities. Before testifying, Kern reviewed Four

J’s evacuation plans, Udemezue’s deposition, the Houston Fire Department (“HFD”)

arson report, and documents about the other residents at the facility. Based on his

review, he concluded that the applicable standard of care required that a residential

care provider prohibit a resident with Arzola’s history of physical and verbal

aggression and self-injurious behavior any access to an incendiary device, such as a

cigarette lighter. A residential care provider also must provide adequate supervision

and room inspections by staff members. Kern explained that persons like Arzola are

unable to “realize the consequences of their actions at the time that they are upset.”

Based on the individual needs of the residents at the facility, the applicable standard

of care required that “the house most definitely needed to be double staffed.” Kern

noted that one of Four J’s residents required total care and several of them had

behavioral issues or concerns. For instance, he explained, it “would be impossible

12
to be bathing a [resident] in the bathroom when you may have another [resident who

is] trying to leave the home or hav[ing] a physical altercation with another resident.”

Kern also explained that the applicable standard of care for a four-bedroom

residential care facility, such as here, required that it have an overhead sprinkler

system, unless each of the residents could evacuate within three minutes, which is a

“prompt evacuation score.” And because fire-safety training must “be consistent

across various shifts and different times of the day and night,” such a facility must

perform “third shift [fire] drill[s].” The standard of care also dictated that facility

staff members be trained in the use of a fire extinguisher. Kern, based on his review

of the HFD photographs, noted that although Udemezue was inside the facility

during the early stages of the fire, she did not use the facility’s fire extinguisher.

As for accessibility of exits in case of a fire, Kern stated that they “should be

clear of obstacles.” He stated that a door with a deadbolt lock that requires key

access would meet the standard of care in a residential group home only “if all

residents in the home had access to the key and that they could mentally and

physically be able to open up the door with the key.” Jenny could have “never met

that criteria.” And it was apparent that a key to the deadbolt was unavailable, even

to the staff members. Kern concluded that Four J’s had breached the standard of

care in each of the areas that he had outlined.

13
Rick Overholt, the general manager of Omni Fire and Security Systems, LP

(“Omni”), testified that he had installed a fire alarm at the facility. But the alarm

that he installed was a local alarm that was not designed to automatically notify HFD

in the event of a fire.

Dr. Karen Gollaher, a licensed psychologist practicing in Houston, testified

that in March 2009, she performed a court-ordered evaluation of Arzola’s

competency to stand trial for the offense of arson in a separate criminal proceeding.

She found Arzola incompetent to stand trial. Gollaher explained that Arzola

experienced auditory hallucinations, had tremendous difficulty answering questions

and understanding terms, and did not understand that a death had resulted from the

fire.

Uduma testified that she is the president, chief executive officer, and sole

shareholder of Four J’s. She is also the sole owner of the facility, which she leases

to Four J’s. Before leasing the facility to Four J’s, Uduma had a wheelchair ramp

installed and the windows replaced with double hung windows. She had doorways

and bathrooms widened to accommodate wheelchair users and had hollow interior

doors replaced with solid core doors.

Uduma also testified that she contracted with Omni to install the fire alarm

system in the facility. The contract itself identifies Four J’s as the customer. The

fire alarm system that Omni installed had a “local alarm only” and did not

14
automatically notify the HFD if a fire occurred. Omni does not install overhead

sprinkler systems, and Uduma did not have overhead sprinklers installed in the

facility.

Uduma stated that, as Program Director for Four J’s, she makes “sure that the

employees are trained, . . . that the agency complies with all the rules and

regulations, which is called Community based Standard by” what was then known

as the “Texas Department . . . of Mental Health and Mental Retardation

[“TDMHMR”].” She added that another of her job responsibilities was to “make

sure that when the State comes out to do an audit, that [Four J’s] ha[s] every

document to present to [the State], because [Four J’s] ha[s] [an] audit once a year

that the State come[s] and review[s] the whole program” by “go[ing] to the houses

to make sure the houses . . . meet the health and safety of the [residents],”

review[ing] [Four J’s] documents,” and “interview[ing] employees.” And Uduma

explained that she is personally involved in training the staff members because “if

the staff [members] . . . d[o] not answer questions . . . relating to every [resident],”

Four J’s can be “cited, which could lead to termination of [the] contract.” Uduma

“invite[] the Adult Protective Services to come and train the staff

[members] . . . once a year . . . on how to prevent abuse and negligence, to make

them aware [of] what is considered physical abuse, verbal abuse, neglect and

exploitation.”

15
Uduma confirmed that she visited the facility “on many occasions.” Omni

would perform annual fire alarm system inspections, which Uduma attended. Before

an inspection or “[w]hen there was something major with the alarm system or

repairs,” Omni would call Uduma and ask her to send a supervisor to let them into

the facility.

Uduma would also accompany the fire marshal on annual inspections. She

confirmed that the back door of the facility was locked with a deadbolt that required

a key to open it. During fire inspections, Uduma would “open the drawer” to retrieve

the back door key and open the back door.

At the time of the fire, there were four clients residing at the facility and only

one staff member on duty. Uduma acknowledged that Four J’s staff members were

“never supposed to leave” residents unattended. And she admitted that the back door

of the house had a deadbolt lock that required a key to open it from the inside, and

staff members seldom had the key to the back door.

Before the fire, Uduma and Four J’s knew that Arzola had been diagnosed

with bipolar disorder, had tried to commit suicide, and had a history of violence

toward staff members. And Uduma was familiar with Arzola’s psychological

evaluation and “Annual Individual Service Plan,” the most recent of which Four J’s

had completed the month before the fire. Arzola, who was then twenty-five years

old, had, as a child, been emotionally, physically, and sexually abused, including

16
being compelled into prostitution by her biological parents. After their parental

rights had been terminated, Arzola’s parents facilitated her unauthorized departure

from Richmond State School and took her to the Dallas area, where she “became

infected with herpes as a result of . . . sexual activity between her and her father.”

Arzola also had a history of alcohol and narcotics abuse, many placements in

residential treatment centers, and “multiple contacts” with the Dallas Juvenile

Justice Department for running away, evading arrest, prostitution, probation

violations, and assault. And Arzola had a long history of behavioral issues, including

breaking windows and light fixtures, trying to leap from moving vehicles,

swallowing objects, wrapping ligatures around her throat, biting herself and others,

and “headbanging,” choking, stabbing, and bludgeoning others. Based on a

“complete diagnostic evaluation,” Four J’s concluded that Arzola was functioning

“within the mild range” of intellectual disability and her behavior was

“non-compliant most of the time.” Although she had not been adjudicated

incompetent by a court at the time of the fire and was acting as her own legal

guardian, her behavioral problems were “severe” and required multiple psychotropic

medications to manage. Her behavioral problems were “typically occasioned by

staff [members] making requests of her, delaying or denying her tangibles or

services,” or “dividing their time” between Arzola and others. Because Four J’s

17
knew that Arzola’s aggression might result in injury to herself and others, it directed

that staff members “[k]eep all sharps, medications, and poisons” in locked storage.

Uduma also testified that although Four J’s allowed Arzola to smoke

cigarettes, it did not allow her to keep a cigarette lighter. Uduma did not know how

Arzola had obtained the cigarette lighter that she had used to start the fire. But she

conceded that Four J’s never searched Arzola’s bedroom for contraband because the

room “belong[ed] to her.” Uduma contended that Arzola was solely responsible for

the injuries that had resulted from the fire because Arzola was “a competent adult”

who was only mildly intellectually disabled, she had set the fire, and

law-enforcement authorities had arrested her for arson. According to Uduma, if

Udemezue had followed her fire-emergency training, she would have been able to

timely evacuate all the residents without injury. Uduma stated that a key to the

locked back door was kept in a kitchen drawer at the facility.

Ngozi Obichuku, a care coordinator at Four J’s, testified that Jenny was the

only client at the facility who would have needed physical assistance to evacuate.

On May 13 and June 6, 2008, Obichuku had trained Udemezue about Jenny’s

individual evacuation plan. According to Obichuku, Udemezue simply did not

follow her fire-emergency training during the fire. As for Arzola’s access to a

cigarette lighter, Obichuku explained that the residents of the facility were allowed

to take “smoking breaks,” during which the staff members “issue[d] out the lighters.”

18
And the staff members were responsible for collecting the cigarette lighters “after

the [residents] [we]re done.”

Question One of the jury charge asked the jury: “Did the negligence, if any,

of [Four J’s, Uduma, and Arzola] proximately cause the injuries in question?” As

to both Four J’s and Uduma, the jury answered, “Yes.” As to Arzola, the jury

answered, “No.” In response to Question Two of the jury charge, the jury

apportioned the responsibility of Four J’s at sixty percent and Uduma at forty

percent. And in response to Question Three of the jury charge, the jury awarded

Wagner damages as follows:

Physical pain and mental anguish sustained in the past: $4,000,000.

Physical pain and mental anguish that, in reasonable
probability, Jenny will sustain in the future: $1,500,000.

Disfigurement sustained in the past: $1,500,000.

Disfigurement that, in reasonable probability, Jenny
will sustain in the future: $1,000,000.

Reasonable expenses of necessary medical care
actually paid or incurred by or on behalf of Jenny: $76,400.

The trial court entered judgment on the verdict, and Four J’s and Uduma

moved for a new trial. The trial court granted the motion, and Wagner petitioned

19
this Court for mandamus relief. We conditionally granted relief,2 and the trial court

set aside its new-trial order and reinstated its judgment.

Legal Sufficiency of Evidence of Uduma’s Negligence

In their first issue, Four J’s and Uduma argue that there is legally insufficient

evidence to support the jury finding’s that Uduma is personally liable for negligence

because no evidence shows that Uduma was negligent as lessor of the facility’s

premises or as an owner, employee, and agent of Four J’s.

When a party attacks the legal sufficiency of an adverse finding on an issue

on which it did not have the burden of proof, it must demonstrate that no evidence

supports the finding. Exxon Corp. v. Emerald Oil & Gas, Co., 348 S.W.3d 194, 215

(Tex. 2011). We will sustain a legal sufficiency or “no-evidence” challenge if the

record shows: (1) a complete absence of evidence 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 a legal sufficiency review, we consider the evidence in a light most

favorable to the jury’s finding, crediting favorable evidence if reasonable jurors

2
In re Wagner, 560 S.W.3d 309, 320–24 (Tex. App.—Houston [1st Dist.] 2017, orig.
proceeding [mand. denied]).
20
could, and disregarding contrary evidence unless reasonable jurors could not. Id. at

827; see also Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003) (in reviewing “no

evidence” point, court views evidence in light that tends to support finding of

disputed fact and disregards all evidence and inferences to contrary); Republic

Petroleum, LLC v. Dynamic Offshore Res. NS LLC, 474 S.W.3d 424, 433 (Tex.

App.—Houston [1st Dist.] 2015, pet. denied). The jury is the sole judge of the

credibility of the witnesses and the weight to be given to their testimony. See City

of Keller, 168 S.W.3d at 819; Republic Petroleum, 474 S.W.3d at 433.

Lessors generally owe no duty to tenants or their invitees for dangerous

conditions on leased premises. Johnson Cty. Sheriff’s Posse, Inc. v. Endsley, 926

S.W.2d 284, 285 (Tex. 1996). This rule stems from the notion that a lessor

relinquishes possession of the premises to the lessee. Id. at 285; Blancett v.

Lagniappe Ventures, Inc., 177 S.W.3d 584, 590 (Tex. App.—Houston [1st Dist.]

2005, no pet.); see RESTATEMENT (SECOND) OF TORTS § 356 cmt. a. (AM. LAW INST.

1965).

Texas courts recognize exceptions to this general no-duty rule. For example,

a lessor who agrees to repair the leased property owes a duty to exercise ordinary

care in making the repair, and a lessor who makes repairs may be liable for injuries

resulting from the lessor’s negligence in making those repairs. Blancett, 177 S.W.3d

at 590. A lessor may also be liable if she concealed defects on the leased premises.

21
Id. And, at issue here, a lessor may be liable if an injury is caused by a defect on a

portion of the premises that remained under the lessor’s control. Id.; see

RESTATEMENT (SECOND) OF TORTS §§ 360, 361 (AM. LAW INST. 1965).

Question One of the jury charge about negligence contained the following

instruction:

With respect to the condition of the premises, . . . Uduma was negligent
if—

1) the condition posed an unreasonable risk of harm, and

2) . . . Uduma knew or reasonably should have known of the danger,
and

3) . . . Uduma failed to exercise ordinary care to protect Jenny . . . from
the danger, by both failing to adequately warn the [g]uardian[] of
Jenny . . . of the condition and [by] failing to make that condition
reasonably safe.

No jury charge question was submitted on the element of control, and Four J’s and

Uduma did not object to the omission. See Blancett, 177 S.W.3d at 590 (lessor may

be liable if injury is caused by defect on portion of premises that remained under

lessor’s control). As a result, if there is legally sufficient evidence to support a

finding of control, it is “deemed found by the court in such manner as to support the

judgment.” TEX. R. CIV. P. 279; see also Serv. Corp. Int’l v. Guerra, 348 S.W.3d

221, 228–29 (Tex. 2011).

Uduma testified both in her capacity as the corporate representative for Four

J’s and in her individual capacity as the owner of the facility premises. Before
22
leasing the facility to Four J’s, Uduma had a wheelchair ramp installed and the

windows replaced with double-hung windows. She had doorways and bathrooms

widened to accommodate wheelchair users and had hollow interior doors replaced

with solid-core doors.

Uduma also testified that she contracted with Omni to install the fire alarm

system in the facility. The contract itself identifies Four J’s as the customer. The

fire alarm system that Omni installed had a “local alarm only” and did not

automatically notify the HFD if a fire occurred. Omni does not install overhead

sprinkler systems, and Uduma did not have overhead sprinklers installed in the

facility.

Uduma confirmed that she visited the facility “on many occasions.” Omni

would perform annual fire alarm system inspections, which Uduma attended. Before

an inspection or “[w]hen there was something major with the alarm system or

repairs,” Omni would call Uduma and ask her to send a supervisor to let them into

the facility.

Uduma would also accompany the fire marshal on annual inspections. She

confirmed that the back door of the facility was locked with a deadbolt that required

a key to open it. During fire inspections, Uduma would “open the drawer” to retrieve

the back door key and open the back door.

23
Kern testified that the applicable standard of care for a four-bedroom

residential care facility required that it have an overhead sprinkler system unless

each of the residents could evacuate herself within three minutes. Kern also stated

that exits in a residential group home “should be clear of obstacles” to allow for

quick escape in the event of a fire. And a door with a deadbolt lock that requires

key access would meet the standard of care in a residential group home only “if all

residents in the home had access to the key and that they [were] mentally and

physically” able “to open up the door with the key,” which was not the case in the

facility.

Four J’s and Uduma refer this Court to Osti v. Saylors, 991 S.W.2d 322 (Tex.

App.—Houston [1st Dist.] 1999, pet. denied), which involved a suit for the wrongful

death of tenants who died in apartment fire. 991 S.W.2d at 324. There, the evidence

showed that the landlord “was in control of structural changes and did not expect his

tenants to build a safe fire escape,” and the court determined that the landlord “owed

his tenants a duty under the common law to exercise reasonable care in discovering

the risk of having inadequate means of egress and in making a safe second means of

egress.” Id. at 326 (citing RESTATEMENT (SECOND) OF TORTS § 361 cmt. a (AM. LAW

INST. 1965)). Four J’s and Uduma try to distinguish Osti, asserting that it “involves

heightened obligations” for landlords and the landlord in Osti had control over

structural components of the building, including those structural components that

24
would provide for the safe exit from a building during a fire. Id. at 327. But here,

like Osti, the record shows that Uduma exercised control over safety issues in the

facility. As premises owner, she made structural changes to the house so that it could

be leased as a residential group home facility and admittedly did not have an

overhead sprinkler system installed. And Uduma would enter the facility regularly,

including for the purpose of fire safety inspections, and she was aware of the

deadbolt lock on the back door that required a key. Given that she was testifying

both as Four J’s corporate representative and as premises owner, her testimony about

improvements to the property she made as premises owner and her testimony about

her involvement in fire safety inspections, in which her role was not clear, reasonable

jurors could infer that Uduma was acting, at least in part, as premises owner by

participating in fire inspections. And the jury could credit Kern’s testimony that the

facility did not meet the standard of care because it lacked an overhead sprinkler

system and had a locked back door, and find Uduma responsible as premises owner,

because she made other modifications to the home so that it could serve as a

residential group home facility.

Viewing the evidence in a light most favorable to the jury’s finding, some

evidence supports the jury’s finding that, as premises owner, Uduma negligently

exercised control over the fire safety condition of the facility, including the locked

back door. Thus, we hold that legally sufficient evidence supports the jury’s finding

25
that Uduma was negligent as lessor of the facility’s premises. As a result, we need

not consider whether the evidence supports a finding of negligence against Uduma

as an owner, employee, and agent of Four J’s. See TEX. R. APP. P. 47.1.

We overrule Four J’s and Uduma’s first issue.

Factual Sufficiency of Evidence of Non-Economic Damages

In their second issue, Four J’s and Uduma argue that the evidence is factually

insufficient to support the jury’s damages awards for past and future disfigurement

and past and future physical pain and mental anguish because the awards “run[]

against the great weight and preponderance of the evidence and [are] so excessive

that [they are] unjust.” As a result, Four J’s and Uduma assert that the non-economic

damages awarded here are excessive and require a remittitur. See Pope v. Moore,

711 S.W.2d 622, 624 (Tex. 1986) (challenges to excessiveness of damages awards

are factual-sufficiency challenges).

When a party attacks the factual sufficiency of an adverse finding on an issue

on which it did not have the burden of proof, it must demonstrate that the adverse

finding is so contrary to the overwhelming weight of the evidence as to be clearly

wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986);

Estrada v. Cheshire, 470 S.W.3d 109, 120 (Tex. App.—Houston [1st Dist.] 2015,

pet. denied). In conducting a factual-sufficiency review, we examine, consider, and

weigh all evidence that supports or contradicts the jury’s determination. See Dow

26
Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Plas-Tex, Inc. v. U.S. Steel

Corp., 772 S.W.2d 442, 445 (Tex. 1989) As in a legal-sufficiency review, we

recognize the jury as the sole judge of the credibility of the witnesses and the weight

to be given to their testimony. See Golden Eagle Archery, Inc. v. Jackson, 116

S.W.3d 757, 761 (Tex. 2003).

“When someone suffers personal injuries, the damages fall within two broad

categories—economic and non-economic damages.” Id. at 763. Non-economic

damages, which are at issue here, provide compensation for an injured party’s pain,

suffering, mental anguish, disfigurement, and physical impairment. See id. Because

each case is unique and measured by its own facts, the jury has wide latitude in

determining the appropriate amount to award in a personal injury case. Primoris

Energy Servs. Corp. v. Myers, 569 S.W.3d 745, 760 (Tex. App.—Houston [1st Dist.]

2018, no pet.). “Once the existence of some pain, mental anguish and disfigurement

has been established, there is no objective way to measure the adequacy of the

amount awarded as compensation, which is generally left to the discretion of the

[jury].” Figueroa v. Davis, 318 S.W.3d 53, 62 (Tex. App.—Houston [1st Dist.]

2010, no pet.) (internal quotations omitted).

The jury awarded Wagner $1.5 million for past disfigurement and $1 million

for future disfigurement. Relying on our decision in Houston Lighting Power Co. v.

Reed, 365 S.W.2d 26 (Tex. Civ. App.—Houston 1963, writ ref’d n.r.e.), Four J’s

27
and Uduma argue that the jury’s disfigurement award is excessive and unjust

because, due to Jenny’s “diminished mental capacity and diminished ability to

communicate,” there is “no evidence that [she] suffered any embarrassment or that

the contemplation of scars caused by her skin grafts and scarring has caused any

mental suffering.”

Damages are measured by the question and instruction given in the trial

court’s jury charge. Equistar Chems. L.P. v. Dresser-Rand Co., 240 S.W.3d 864,

868 (Tex. 2007); Primoris Energy Servs., 569 S.W.3d at 758. Because the jury

charge did not define “disfigurement,” we measure the sufficiency of the evidence

against the commonly understood meaning of the word. Primoris Energy Servs.,

569 S.W.3d at 758. Disfigurement is “that which impairs the appearance of a person,

or that which renders unsightly, misshapen or imperfect, or deforms in some

manner.” Doctor v. Pardue, 186 S.W.3d 4, 18 (Tex. App.—Houston [1st Dist.]

2005, pet. denied). As defined, disfigurement does not have any mental or emotional

element.

This Court’s decision in Reed, which predates Doctor, does not suggest a more

expansive definition of disfigurement. There, the defendant had objected to an

instruction in the jury charge informing the jury on the damages issue, “to consider

‘such humiliation and embarrassment[] which [the plaintiff] will suffer in [the]

future.’” Reed, 365 S.W.2d at 29. The defendant asserted that “humiliation and

28
embarrassment” is “not a proper item of damages, and is not the type of element of

damages that a jury is supposed to consider.” Id. (internal quotations omitted.) On

appeal, we considered “whether embarrassment and humiliation may properly be

considered by the jury as elements of damage for personal injuries resulting in

disfigurement, i.e., the loss of an eye, and whether this method of submission permits

double recovery.” Id. at 30.

In doing so, this Court observed that mental suffering, disfigurement, and

humiliation are separate “items of damage” that may be submitted where

appropriate. Id. As for disfigurement, we remarked that it could be a properly

submitted element of damage “aside from any effect it might have on earning

capacity,” noting that its submission “may be justified on the theory that suffering is

induced in the mind of the injured party by contemplation of his changed physical

condition.” Id. And we reasoned that “[d]amages are allowed for disfigurement,

humiliation, embarrassment and fright because they cause mental suffering.” Id.

Whatever the origins of disfigurement as an element of damages, the Court’s

discussion in Reed makes clear that disfigurement can be submitted as an issue

separate from the issue of humiliation or embarrassment. See id. Here, Question

Three of the jury charge about disfigurement did not ask the jury to consider any

mental or emotional state in deciding how much to award Wagner, nor did the charge

29
define disfigurement in a way that required consideration of Jenny’s mental or

emotional state.

Four J’s and Uduma next argue that no evidence supports the jury’s damages

award for future disfigurement because there is no evidence of Jenny’s life

expectancy. But Four J’s and Uduma cite no authority requiring proof of life

expectancy before damages for future disfigurement can be awarded. “The matter

of future disfigurement is necessarily speculative and there is no mathematical yard

stick by which one can measure damages for it.” Tri-State Motor Transit Co. v.

Nicar, 765 S.W.2d 486, 494 (Tex. App.—Houston [14th Dist.] 1989, no writ); see

also Pipgras v. Hart, 832 S.W.2d 360, 365 (Tex. App.—Fort Worth 1992, writ

denied) (observing “award of future damages in a personal injury case is always

speculative” and “[l]ife expectancy, medical advances, and the future cost of

products, services and money are not matters of certainty”).

Texas courts have upheld awards for other elements of future damages

without requiring proof of life expectancy. See, e.g., Wal-Mart Stores, Inc. v. Ard,

991 S.W.2d 518, 523 (Tex. App.—Beaumont 1999, pet. denied) (“Proof of life

expectancy is not required to recover lost future earnings, because the jury may reach

its own conclusion as to life expectancy based upon evidence of the injured party’s

age, health and physical condition prior to the injury, and the permanence of the

injury.”); Paragon Hotel Corp. v. Ramirez, 783 S.W.2d 654, 661 (Tex. App.—El

30
Paso 1989, writ denied) (same); see also Columbia Med. Ctr. of Las Colinas v. Bush

ex rel. Bush, 122 S.W.3d 835, 863 (Tex. App.—Fort Worth 2003, pet. denied)

(proving life expectancy in medical malpractice suit to reasonable medical

probability would be impossible because “life expectancy, by its very nature, is

uncertain”); Turner v. Duggin, 532 S.W.3d 473, 484–86 (Tex. App.—Texarkana

2017, no pet.) (upholding, as factually sufficient, jury award of damages for future

physical pain and mental anguish where only counsel’s argument, not evidence,

addressed plaintiff’s life expectancy).

The undisputed evidence shows that Jenny has extensive scarring, both from

the severe burns she suffered in the fire and from the surgical removal of skin used

for grafts to heal the most severely burned areas. Her right ear and the right side of

her face have visible scarring, and she has some keloid scarring. The jury saw

several photographs of Jenny’s scars and saw Jenny in person, and Wagner pointed

out the various locations on Jenny’s body where scars appear. The scars are

permanent. Wagner testified that the skin graft “donor sites” on Jenny’s thighs

require daily treatment with moisturizing cream to prevent the skin from becoming

dry and cracked. We hold that the evidence is factually sufficient to support the

jury’s damages awards for past and future disfigurement.

Four J’s and Uduma next assert that the evidence is factually insufficient to

support the jury’s damages awards of $4 million for past physical pain and mental

31
anguish and $1.5 million for future physical pain and mental anguish. They

acknowledge that the evidence showed that Jenny, who was only able to

communicate in very rudimentary ways, was “very uncomfortable and in pain in

some way” because she could be heard grinding her teeth when the respiratory and

feeding tubes were removed at the hospital, and that she ground her teeth in reaction

to the pain she experienced. Together with this evidence, there is ample

circumstantial evidence of Jenny’s physical pain that the jurors, using common

knowledge and their own experience, could consider in determining the amount of

damages to award. Second- and third-degree burns covered twenty percent of

Jenny’s total body surface area, and she underwent surgery to remove charred skin

and replace it with skin grafts taken from her thighs. Jenny was prescribed narcotic

pain medication, which she took for at least two months after the fire, then suffered

the effects of withdrawal from that medication when she stopped taking it. Because

of the sensitivity of the keloid scarring on Jenny’s right ear, Wagner has to cushion

Jenny’s head with a blanket to take pressure off it while Jenny sleeps. Jenny will

always have problems at the sites of the skin grafts, and the skin graft “donor sites”

on her thighs remain sensitive to heat.

As to mental anguish, the jury could also reasonably find that Jenny has past

and future mental anguish from the trauma she endured. Since the fire, Jenny does

not fall asleep when placed in a bed, is “excessively” startled by sirens, and

32
occasionally calls out for Tanya, her housemate who died in the fire. We hold that

the evidence is factually sufficient to support the jury’s damages awards for past and

future physical pain and mental anguish.

We overrule Four J’s and Uduma’s second issue.

Damages Cap for Health Care Liability Claim

In its third issue, Four J’s argues that the trial court erred in not applying the

damages cap under Texas Civil Practice and Remedies Code section 74.301 because

Wagner’s claim constitutes a health care liability claim governed by the Texas

Medical Liability Act (“TMLA”).3

The TMLA defines a “[h]ealth care liability claim” as:

a cause of action against a health care provider or physician for
treatment, lack of treatment, or other claimed departure from accepted
standards of medical care, or health care, or safety or professional or
administrative services directly related to health care, which
proximately results in injury to or death of a claimant, whether the
claimant’s claim or cause of action sounds in tort or contract.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13) (internal quotations omitted);

see also Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 501 (Tex. 2015). Thus,

we consider three basic elements in determining whether a plaintiff’s claim

constitutes a health care liability claim: (1) whether the defendant is a physician or

health care provider; (2) whether the claim at issue concerns treatment, lack of

3
See TEX. CIV. PRAC. & REM. CODE ANN. §§ 74.001–.507.
33
treatment, or a departure from accepted standards of medical care, or health care, or

safety, or professional or administrative services directly related to health care; and

(3) whether the defendant’s act or omission complained of proximately caused the

injury to the plaintiff. Rio Grande Valley Vein Clinic, P.A. v. Guerrero, 431 S.W.3d

64, 65 (Tex. 2014); see TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(11)–(13).

In a suit involving a health care liability claim, the TMLA limits the amount

of non-economic damages a plaintiff can recover against a defendant physician or

health care provider, other than a health care institution, to “an amount not to exceed

$250,000 for each [plaintiff], regardless of the number of defendant physicians or

health care providers[,] other than a health care institution[,] against whom the claim

is asserted or the number of separate causes of action on which the claim is based.”

TEX. CIV. PRAC. & REM. CODE ANN. § 74.301(a); see also In re Cornejo, No.

01-16-00299-CV, 2016 WL 5851901, at *4 n.2 (Tex. App.—Houston [1st Dist.] Oct.

6, 2016, orig. proceeding [mand. denied]) (mem. op.). The TMLA also limits the

amount of non-economic damages a plaintiff can recover against a defendant health

care institution, when a judgment is rendered against a single health care institution,

“to an amount not to exceed $250,000 for each [plaintiff].” See TEX. CIV. PRAC. &

REM. CODE ANN. § 74.301(b); see also In re Cornejo, 2016 WL 5851901, at *4 n.2.

Generally, where Texas statutes provide for maximum compensatory

damages and a defendant wants to rely on the cap, it is considered an affirmative

34
defense that must be pleaded and proved. See TEX. R. CIV. P. 94; Gulf Coast Ctr. v.

Curry, No. 01-18-00665-CV, 2020 WL 5414983, *3 (Tex. App.—Houston [1st

Dist.] Sept. 10, 2020, no pet.) (mem. op.) (entity failed to conclusively prove it was

entitled to protection of damages cap under Texas Tort Claims Act as unit of local

government, as required for deemed finding under Texas Rule of Civil Procedure

279); River Oaks L-M v. Duarte, 469 S.W.3d 213, 237 (Tex. App.—Houston [14th

Dist.] 2015, no pet.) (statutory cap on compensatory damages found in Texas Labor

Code section 21.2585(a)(1) is affirmative defense that must be pleaded and proved);

see also Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896–97, 904–905

(Tex. 2000) (party’s mistake in pleading wrong section number of statutory cap as

affirmative defense did not preclude application of cap).

We have held in this case, and the parties agree, that the damages cap under

Texas Civil Practice and Remedies Code section 74.301 is an affirmative defense.4

See Uduma v. Wagner, No. 01-12-00796-CV, 2014 WL 4259886, *5 (Tex. App.—

Houston [1st Dist.] Aug. 27, 2014, pet. denied) (mem. op.); see also TEX. CIV. PRAC.

& REM. CODE ANN. § 74.301(b) (“In an action on a health care liability claim where

final judgment is rendered against a single health care institution, the limit of civil

liability for noneconomic damages inclusive of all persons and entities for which

4
In its briefing, Four J’s “acknowledges that the damages cap in [s]ection 74.301 is
an affirmative defense that must be pled.”
35
vicarious liability theories may apply, shall be limited to an amount not to exceed

$250,000 for each [plaintiff].”). And the trial court granted Four J’s motion for leave

to amend its pleadings to assert that affirmative defense. See Uduma, 2014 WL

4259886, at *3 n.8.

Four J’s asserts that the trial court should have decided that it was entitled to

rely on the damages cap under Texas Civil Practice and Remedies Code section

74.301 as a matter of law.5 But Four J’s did not move for summary judgment on its

affirmative defense before trial, and it did not ask for a directed verdict or a jury

finding on its affirmative defense. As a result, Four J’s is entitled to section 74.301’s

damages cap only if the evidence adduced at trial conclusively proves that Wagner’s

claim against Four J’s constituted a health care liability claim. See TEX. CIV. PRAC.

& REM. CODE ANN. § 74.301(a), (b) (damages caps apply “[i]n an action on a health

care liability claim”). In other words, the record must conclusively show that

(1) Four J’s was a health care provider, (2) Wagner’s claim concerned treatment,

lack of treatment, or a departure from accepted standards of medical care, or health

care, or safety, or professional or administrative services directly related to health

care, and (3) Four J’s act or omission proximately caused Wagner’s injury. See Rio

5
In portions of its briefing, Four J’s asserts that the damages cap under Texas Civil
Practice and Remedies Code section 74.301(a) applies to this case and in other
portions of its briefing Four J’s references the damages cap under section 74.301(b).
In its answer, Four J’s did not specify on which particular subsection it relies.
36
Grande Valley Vein Clinic, 431 S.W.3d at 65; see also TEX. CIV. PRAC. & REM.

CODE ANN. § 74.001(a)(11), (12)(A)(vii); TEX. R. CIV. P. 279 (party waives

independent ground of recovery or defense by failing to seek finding unless evidence

conclusively establishes claim or defense).

The parties dispute whether Four J’s conclusively proved its status as a health

care provider, specifically, whether Four J’s was “duly licensed, certified, registered,

or chartered” when the fire occurred. The TMLA defines a “health care provider”

as “any person, partnership, professional association, corporation, facility, or

institution duly licensed, certified, registered, or chartered by the State of Texas to

provide health care,” including, among other things “a health care institution.” TEX.

CIV. PRAC. & REM. CODE ANN. § 74.001(a)(12). The statute, in turn, defines “health

care institution” as including “an intermediate care facility for the mentally retarded

or a home and community-based services waiver program for persons with mental

retardation adopted in accordance with Section 1915(c) of the federal Social Security

Act (42 U.S.C. Section 1396n), as amended.” Id. § 74.001(a)(11)(I). An

“intermediate care facility for the mentally retarded” is “a licensed public or private

institution to which Chapter 252, Health and Safety Code,[6] applies.” Id.

§ 74.001(18).

6
See TEX. HEALTH & SAFETY CODE ANN. §§ 252.001–.208.
37
As evidence to show its status as a health care institution, Four J’s relies on

Uduma’s testimony that, as Program Director for Four J’s, she makes “sure that the

employees are trained, . . . that the agency complies with all the rules and

regulations, which is called Community-based Standard by” what was then known

as the [TDMHMR].” She added that another of her job responsibilities was to “make