Jerry Roberson v. Ronald Shackelford

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________

No. 07-20-00145-CV
________________________

JERRY ROBERSON, APPELLANT

V.

RONALD SHACKELFORD, APPELLEE

On Appeal from the 242nd District Court
Hale County, Texas
Trial Court No. B39804-1405; Honorable Kregg Hukill, Presiding

October 15, 2021

MEMORANDUM OPINION
Before PIRTLE and PARKER and DOSS, JJ.

Appellant, Jerry Roberson, appeals the trial court’s final judgment in favor of

Appellee, Ronald Shackelford, on his property damage claim arising out of a fire that

destroyed Shackelford’s property. Roberson challenges the trial court’s judgment through

four issues. Issue one, was the evidence legally and factually sufficient to support the

judgment against Roberson in his individual capacity? Issue two, was expert testimony
speculative and conclusory and, therefore, improperly admitted? Issue three, was the

evidence legally and factually sufficient to support the trial court’s finding that the fire lit in

the “southeast barrel” on March 15, 2013, was incompletely extinguished? And, finally,

issue four, was the evidence legally and factually sufficient to support the trial court’s

finding that the fire which occurred on March 18, 2013, was caused by an incompletely

extinguished fire lit in the “southeast barrel” on March 15, 2013? We find that while some

of the expert testimony was speculative and conclusory and, therefore, inadmissible, the

evidence was nevertheless sufficient to support the trial court’s final judgment against

Roberson in his individual capacity. Accordingly, we affirm the judgment of the trial court.

BACKGROUND

Roberson and Shackelford own neighboring properties in an industrial area located

in Plainview, Hale County, Texas. Roberson owns real property located at 1014 Ash and

leases that property to JQ Long Roofing. 1 Shackelford leases a nearby property from

BNSF Railroad and owns improvements, including the building at issue in this suit, on

that property. The two properties are separated by an abandoned railroad right-of-way. 2

On Monday, March 18, 2013, an early-morning fire completely destroyed

Shackelford’s building. The building was a “wood frame Quonset barn overlaid with tin

siding.” It was set on a concrete footing and four-by-four posts were mounted into the

concrete footing. Through subsequent investigation, it was determined that the Friday

before the fire (March 15, 2013), three workers, Bernard Ortiz, Sammy Ruiz, and Pedro

1 JQ Long Roofing is a corporation solely owned by Roberson.
2JQ Long Roofing does not own the railroad right-of-way. It is used to provide ingress and egress
to Shackelford’s and Roberson’s properties.

2
Pena, burned debris in two fifty-five-gallon barrels 3 located in the railroad right-of-way

between the two properties. Those three workers were ordinarily employed by JQ Long

Roofing, as contract laborers, but also performed occasional non-job-related tasks for

Roberson, individually. 4

Rusty Powers, the Plainview Fire Department Chief, investigated the fire. He

concluded that, at the time of the fire, the wind had been from the southwest at

approximately seven knots or “slightly over eight miles per hour.” When he arrived at the

scene of the fire, he discovered two hot barrels in the right-of-way between Roberson’s

and Shackelford’s properties. The barrel to the southeast of Shackelford’s building was

about twelve feet from the building and was about three-quarters full of ash. Powers also

observed a nearby telephone pole with charring primarily on the east side of the pole.

Powers opined this indicated the fire traveled from east of the pole, from the direction of

the southeast burn barrel. Powers spoke with Roberson on March 18, and he confirmed

he had people “cleaning up, and they were burning in those barrels.”

Phillip Mize, the fire marshal and chief fire investigator at the Plainview Police

Department, conducted his investigation of the scene several days later. At the scene,

Mize saw a barrel approximately twelve to fifteen feet off the southeast corner of the

building. He testified it appeared to be “three-quarters full or a little better.” He did note

that there was also a lot of tin on the scene, likely distributed when the firefighters fought

3 Roberson testified he did not know whether the barrels belonged to JQ Long Roofing.

4 Roberson testified that he tried to make sure the workers were given work, even during slow times

for the roofing company. He told the workers that if they were “interested, you know, you can clean up this
property back here. I’m having a lot of break-in’s [sic] into my property, and so if you guys want to do it,
they can do that.” Roberson also testified that the workers did work for him around his farm and residence.

3
the blaze. Mize observed physical evidence of the fire’s progression, including burn

patterns on the ground outside Shackelford’s building. Mize only saw patterns on the

southeast corner of the building. He testified “those did not come from the pit, those came

from the direction of the barrel.” Following his observations and after considering

alternative hypotheses, Mize concluded the fire was human-caused and that the burn

barrel near the southeast corner of Shackelford’s building was most likely the point of

origin and the ignition source.

Shackelford sued Roberson for negligence in his individual capacity, seeking

damages for the destruction of his building. He pleaded two theories under which he

alleged Roberson was personally liable. First, Roberson was sued for his own negligence

in that he breached the duty of care owed to Shackelford by failing to adequately

supervise and exercise control over the workers and by failing to exercise reasonable

care to ensure his property was safe before leaving the barrels unattended (direct

liability). Second, Shackelford alleged Roberson was liable under the doctrine of

respondeat superior for the negligence of his workers (vicarious liability). Roberson did

not allege he was not liable in the capacity sued. Rather, his defensive theory was that

he was not responsible for the fire, directly or indirectly, because a third party started the

fire and caused the damage to Shackelford’s building. The matter was tried to the bench,

after which the trial court entered findings of fact and conclusions of law. 5 The trial court

then entered a judgment in favor of Shackelford, awarding to him the sum of $70,000. 6

5 In one of those findings, the trial court found that Roberson’s employees did not properly

extinguish the fire they had started in the southeast burn barrel.
6Shackelford testified he believed he would incur expenses of at least $70,000 to replace the
burned structure.

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 STANDARD OF REVIEW

In an appeal from a bench trial, the trial court’s findings of fact have the same

weight as a jury verdict. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); Nguyen

v. Yovan, 317 S.W.3d 261, 269-70 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).

When challenged, a trial court’s findings of fact are not conclusive if there is a complete

reporter's record on appeal. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795

(Tex. 2002). We review a trial court’s findings of fact under the same legal sufficiency of

the evidence standard used when determining whether sufficient evidence exists to

support an answer to a jury question. Catalina, 881 S.W.2d at 297; Nguyen, 317 S.W.3d

at 269-70.

An appellant is not entitled to challenge a trial court’s conclusions of law for factual

sufficiency, but an appellate court may review the legal conclusions drawn from the facts

to determine their correctness. See BMC Software Belg., N.V., 83 S.W.3d at 794. In an

appeal from a bench trial, we review the conclusions of law de novo and will uphold them

if the judgment can be sustained on any legal theory supported by the evidence. Id. “If

the reviewing court determines a conclusion of law is erroneous, but the trial court

rendered the proper judgment, the erroneous conclusion of law does not require reversal.”

Id.

When considering whether legally sufficient evidence supports a challenged

finding, we must consider the evidence that favors the finding if a reasonable fact finder

could, and disregard contrary evidence unless a reasonable fact finder could not. City of

Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Additionally, we view the evidence in

the light most favorable to the trial court’s findings and indulge every reasonable inference

5
to support them. Id. at 822. We may not sustain a legal sufficiency, or “no evidence,”

point unless the record demonstrates: (1) a complete absence of evidence of a vital fact;

(2) that the court is barred by rules of law or of evidence from giving weight to the only

evidence offered to prove a vital fact; (3) that the evidence offered to prove a vital fact is

no more than a mere scintilla; or (4) that the evidence conclusively establishes the

opposite of the vital fact. Id. at 810. Because it acts as the fact finder in a bench trial, the

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

their testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).

Therefore, we will not substitute our judgment for that of the fact finder so long as the

evidence at trial “would enable reasonable and fair-minded people to differ in their

conclusions.” City of Keller, 168 S.W.3d at 822.

When an appellant attacks the legal sufficiency of an adverse finding on an issue

on which it has the burden of proof, the appellant must demonstrate on appeal that the

evidence establishes, as a matter of law, all vital facts in support of the issue. Dow Chem.

Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). In reviewing such a challenge, the

reviewing court must first examine the record for evidence that supports the finding, while

ignoring all evidence to the contrary. Id. If there is no evidence to support the finding,

the reviewing court will then examine the entire record to determine if the contrary

proposition is established as a matter of law. Id. The point of error should be sustained

only if the contrary proposition is conclusively established. Id.

In a factual sufficiency review, we consider and weigh all of the evidence. See

Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Arias v. Brookstone, L.P., 265 S.W.3d

459, 468 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). When an appellant

6
challenges an adverse finding on an issue on which it did not have the burden of proof

at trial, we set aside the verdict only if the evidence supporting the finding is so weak as

to make the verdict clearly wrong and manifestly unjust. See Cain, 709 S.W.2d at

176; Reliant Energy Servs., Inc. v. Cotton Valley Compression, L.L.C., 336 S.W.3d 764,

782 (Tex. App.—Houston [1st Dist.] 2011, no pet.). When an appellant challenges an

adverse finding on an issue on which it had the burden of proof at trial, an appellant must

demonstrate on appeal that the adverse finding is against the great weight and

preponderance of the evidence. Dow Chem., 46 S.W.3d at 242; Reliant Energy Servs.,

Inc., 336 S.W.3d at 782.

ANALYSIS

ISSUE ONE—SUFFICIENCY OF THE EVIDENCE SUPPORTING A FINDING OF INDIVIDUAL
LIABILITY

Roberson advances several arguments through his first issue. He first argues

Shackelford was required to prove he was individually liable and that the evidence set

forth was insufficient to do so. He also argues that the evidence was insufficient to prove

the three workers were working for him in his individual capacity when they cleaned the

right-of-way area on March 15, 2013. Third, he argues the trial court erred when it ruled

that the issue of piercing the corporate veil had been tried by consent. And finally, he

contends the evidence was insufficient to prove he and JQ Long Roofing were alter egos.

Roberson argues that when he filed his general denial, the merits of Shackelford’s

case were placed in issue. He contends it is irrelevant that he did not file a timely motion

to designate a responsible third party or that JQ Long Roofing was not added as a

responsible third party. Roberson asserts that Shackelford must prove he acted

7
individually and not as an agent for JQ Long Roofing. He further argues the evidence

presented was insufficient to prove individual liability. He admits he hired the workers to

clean the right-of-way but says he did so in his capacity as manager for JQ Long Roofing.

He further says his oversight of the cleanup was performed in the same capacity.

Shackelford responds that Roberson has waived the issue that he is not liable in

his individual capacity. Roberson failed to make necessary disclosures under Texas Rule

of Civil Procedure 194.2 because he failed to disclose that JQ Long Roofing was a

potential party or potential responsible third party until after the statute of limitations period

had passed. Further, Roberson did not challenge the trial court’s conclusions of law

regarding the consequences of that failure. Additionally, Roberson only filed a general

denial to Shackelford’s suit against him. He failed to allege in a verified pleading that he

was not liable in his individual capacity or that there was a defect of parties as required

under Texas Rule of Civil Procedure 93. See TEX. R. CIV. P. 93.

In Roberson’s reply brief, he argues the trial court’s conclusions of law “dealt with

direct liability, not direct negligence. The findings of fact and conclusions of law do not

attribute any direct negligence to Roberson.” He also asserts that while Shackelford

pleaded direct negligence, he argued at trial that Roberson was liable under vicarious

liability and alter ego theories. See Price v. Sanchez, No. 14-15-00508-CV, 2016 Tex.

App. LEXIS 8555, at *7 n.5 (Tex. App.—Houston [14th Dist.] Aug. 9, 2016, no pet.) (mem.

op.) (appellants argued that the plaintiff offered no evidence or testimony to pierce the

corporate veil sufficient to hold appellants individually liable for the actions of their

respective corporations, but the trial court held that the plaintiff’s failure to plead any veil-

piercing theories did not preclude a determination that appellants were individually liable

8
for their own actions) (emphasis in original). See also Light v. Wilson, 663 S.W.2d 813,

814 (Tex. 1983); Butler v. Joseph’s Wine Shop, Inc., 633 S.W.2d 926, 930 (Tex. App.—

Houston [14th Dist.] 1982, writ ref'd n.r.e.) (holding that individual liability may be found

without having to find the corporation is alter ego of individual); Gray v. West, 608 S.W.2d

771, 778 (Tex. App.—Amarillo 1980, writ ref'd n.r.e.) (concluding that plaintiff sued

defendant individually on the theory that defendant participated individually in the

transaction; plaintiff was not attempting to establish defendant’s liability as an alter ego).

Ordinarily, a defendant must file a verified denial should he wish to assert that he

“is not liable in the capacity in which he is sued.” Price, 2016 Tex. App. LEXIS 8555, at

*4 (citing TEX. R. CIV. P. 93(2)). However, the Supreme Court of Texas has found that

this requirement applies to a defendant’s “standing to assert or defend the action before

the Court. It does not relate to the merits of the cause of action or the merits of the

defenses thereto.” Price, 2016 Tex. App. LEXIS 8555, at *4 (citing Light, 663 S.W.2d at

814 (rejecting plaintiff’s contention that defendant waived defense that he was not liable

in the individual capacity in which he was sued, despite defendant’s failure to file general

denial)). The defendant can still challenge whether the plaintiff met his burden to “recover

in any capacity alleged.” Price, 2016 Tex. App. LEXIS 8555, at *4 (citing Beesley v.

Hydrocarbon Separation, Inc., 358 S.W.3d 415, 421-422 (Tex. App.—Dallas 2012, no

pet.) (analyzing Light and concluding that defendant may challenge plaintiff’s right to

recover, despite lack of verified pleading)). If a defendant files a general denial, then the

merits of the plaintiff’s case are placed in issue. Price, 2016 Tex. App. LEXIS 8555, at *5

(citing Light, 663 S.W.2d at 814). Accordingly, despite the fact that Roberson did not file

a verified denial, he did not waive his right to challenge the legal sufficiency of the

9
evidence against him. Price, 2016 Tex. App. LEXIS 8555, at *5 (citing TEX. R. APP. P.

33.1(d) (providing that “[i]n a nonjury case, a complaint regarding the legal or factual

insufficiency of the evidence . . . may be made for the first time on appeal in the

complaining party’s brief”)). See Ross Stores, Inc. v. Miller, No. 14-18-01032-CV, 2020

Tex. App. LEXIS 8589, at *7-8 (Tex. App.—Houston [14th Dist.] Nov. 3, 2020, no pet.)

(mem. op.) (citing Price, 2016 Tex. App. LEXIS 8555 at *5). We will thus consider the

merits of Roberson’s argument.

The evidence before the trial court supporting a finding of Roberson’s direct liability

was the undisputed evidence that he owned the property and was the sole shareholder

of the corporation leasing the premises. The right-of-way was not part of Roberson’s

property, but he asked his workers to clean up the area. Ortiz, Ruiz, and Pena, while

employed by JQ Long Roofing, frequently performed labor for Roberson at his home.

Powers testified Roberson referred to the three workers as “his employees.” Roberson

testified, “I don’t have any employees and never have had.”

Ruiz testified that before the fire, he “was cleaning up a whole bunch of leaves.

We had a bunch of leaves and I was burning leaves, that’s what I was doing.” He

answered “No, sir” when asked whether Roberson told him to burn leaves. Ruiz told the

court that “[a]fter about 5:00, they came out, [Roberson] and [Ortiz] came out and told me

to put the fire out.” He “poured a bucket of water.” He later specified saying, it was a

“[f]ive gallon bucket.” Ruiz did agree that they used Roberson’s trailer for the clean-up.

On cross-examination, he clarified that the trailer belonged to JQ Long Roofing, not

Roberson, and that all three workers primarily worked for the roofing company, not

Roberson. He testified on direct examination Roberson told them what to clean up, when

10
to come to work, and when to leave work. He also agreed Roberson was his only source

of employment at the time of the fire. He also stated Roberson told them on Friday, March

15, not to burn in the barrels.

Ortiz testified he believed Roberson bought JQ Long Roofing at some point and

was the sole owner. Ortiz said he worked for Roberson as a subcontractor for JQ Long

Roofing and that Ruiz and Pena worked with him. Ortiz testified that when he was doing

roofing work, Roberson paid him “by the square” but when the workers were doing

cleanup, Roberson would pay him “by the hour.” Ortiz stated that Ruiz and Pena were

paid through him, not Roberson. Ortiz testified he had helped Roberson at his farm with

his cattle for “[a]bout 20 years.” He said he did not believe that task was related to JQ

Long Roofing. Ortiz also testified they sometimes worked at Roberson’s house “doing

cleanup.” Ortiz mowed Roberson’s yard and the three of them would “mow the depot

area and clean up around there.” They also cared for Roberson’s animals. He said that

while he had some tools of his own, JQ Long Roofing provided the tools for the work he

did for the company. He told the court Roberson provided the tools for cleanup of the

right-of-way on March 15.

Ortiz further testified Roberson told them to clean up the right-of-way near the

business but did not tell the workers to burn the leaves. The workers decided to do so on

their own. He told the court that prior to the fire, he and the other two workers “were

raking up leaves and burning them in barrels.” He said they were “just doing some

cleanup, and he did not tell us to burn them, but we got the bright idea that we could just

put them into barrels and get rid of them.” He did confirm, however, that Roberson was

aware that the workers were burning debris in the barrels. Roberson testified he did not

11
know the men were burning debris until he arrived on Friday, March 15. Shackelford

argues this demonstrates Roberson failed to adequately supervise the workers during

their cleanup work that week.

However, Ortiz also testified Roberson did not tell them to stop burning leaves

because he “was busy in the office somewhere.” Ortiz said the workers had been burning

in those two barrels for about “two days, three days” that week. He said that on Friday,

March 15, they extinguished the fires in the two fifty-five-gallon barrels by “dous[ing] them

with five gallon buckets of water . . . .” They then checked to make sure the fires were

out by poking inside the barrels with a stick.

Pena testified he did some jobs for JQ Long Roofing but the three workers were

“just kind of like cleaning up” when the 2013 fire occurred. He said “[i]t was different from

the roofing part.” He said the workers decided to burn in one or two big barrels while they

waited on their paychecks. He agreed that when he was doing this job, he was paid by

JQ Long Roofing. He later said he was paid by “[t]he company or Jerry.” He also said

the barrels in question were not full that day. He did not recall whether Roberson came

to the property on March 15. He remembered they put the fires out by pouring water into

the barrels.

Roberson testified at trial that he owns the real estate on which JQ Long Roofing

sits. The roofing company operates on a lease. Roberson testified he hired the three

workers to conduct cleanup of the right-of-way near his property as “general manager of

J.Q. Long Roofing. J.Q. Long Roofing hired men—contracted with a group of men to do

cleanup for a contracted amount.” Roberson did not personally participate in any part of

12
the job. He requested that the workers clean up the area because of the danger of fire

and vandalism. He testified he contracted with them to perform these tasks for $1,000,

which he later increased to $1,100 due to additional expenses. He provided dump trucks

and a flatbed trailer for them to clear out the trees, brush, and undergrowth and to pick

up wood from a fence. Roberson admitted he sometimes hired the workers to do projects

outside the work of the roofing company and did so on “a day labor basis.” The record

also shows Roberson personally saw the barrels on the afternoon of Friday, March 15,

2013, and saw that the workers were “putting the barrels out, pouring water in the barrels

as I approached.”7 He testified he “visually inspected to make sure that there wasn’t

anything in there.” The record also shows Roberson was individually issued a ticket for

burning inside the city limits, an action that violated a city ordinance. However, there is

no indication that the ticket was ever adjudicated.

Mize testified he was never “told anything about J.Q. Long Roofing, it was always

Mr. Roberson.” According to both Mize and Powers, five gallons of water was insufficient

to extinguish a fire burning in the southeast fifty-five-gallon barrel and it was possible that

such a fire would continue to smolder for days, even if it appeared the fire was out. In

fact, on March 22, 2013, four days after the fire, Powers checked the barrel and found the

southeast barrel was still smoldering and the temperature of the barrel measured at 368

degrees. This followed two attempts to extinguish the fires with water from fire engines.

The trial court was the sole judge of the facts and of the credibility of the witnesses,

and we will assume that it made the necessary fact findings to support its judgment.

7 At trial, Roberson testified that burning in the barrels was “totally inappropriate.”

13
Based on this record, we cannot say that the evidence was legally or factually insufficient

to support the trial court’s finding of individual responsibility on the part of Roberson for

the damages sustained by Shackelford. Because we find the evidence was sufficient to

support the finding of liability, we need not discuss the alternative arguments that the trial

court’s determination of liability was sustainable based on either a theory of trial by

consent or alter ego. Issue one is overruled.

ISSUE TWO—EXPERT TESTIMONY

Via his second issue, Roberson contends the testimony of Powers and Mize was

speculative and conclusory and thus constituted no evidence. Shackelford argues that

because Roberson failed to identify and challenge any decision of the trial court, he has

failed to assign error with respect to the admissibility of this expert testimony.

Furthermore, Roberson failed to identify any portion of the record in which he raised his

objections to the expert testimony before the trial court. As such, he has waived his

complaint under issue two. In his reply brief, Roberson counters by responding that he

is entitled to attack the experts’ testimony as being conclusory or speculative by

preserving a legal sufficiency challenge to the evidence and did not need to object at trial.

Opinion testimony that is conclusory or speculative is objectionable as lacking

relevance because it does not tend to make the existence of a material fact “more

probable or less probable.” Integrated of Amarillo, Inc. v. Kirkland, 424 S.W.3d 131, 135

(Tex. App.—Amarillo 2014, no pet.) (citing Coastal Transp. Co. v. Crown Cent. Petro.

Corp., 136 S.W.3d 227, 232 (Tex. 2004) (quoting TEX. R. EVID. 401)). But even if admitted

without objection, an expert’s bare unsupported conclusion amounts to no evidence and

will not support a judgment. Id. (citations omitted). Thus, a party may complain that

14
conclusory opinions are legally insufficient evidence to support a judgment even if no

objection was raised to the admission of that opinion testimony. Kirkland, 424 S.W.3d at

135 (citing City of San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex. 2009) (citing Coastal

Transp. Co., 136 S.W.3d at 232)).

When, however, the contention raised on appeal makes it necessary for the court

to evaluate the underlying methodology, technique, or foundational data used by the

expert, an objection must be timely made so the trial court has the opportunity to conduct

this analysis. Kirkland, 424 S.W.3d at 135 (citing Coastal Transp. Co., 136 S.W.3d at

233). Otherwise, the opinion’s proponent is denied “a fair opportunity to cure any deficit

and thus prevent trial by ambush,” and the trial court’s role as gatekeeper is usurped.

Kirkland, 424 S.W.3d at 135. Challenges to the expert’s scientific methodology, in which

“the court necessarily looks beyond what the expert said to evaluate the reliability of the

expert’s opinion,” Coastal Transp. Co., 136 S.W.3d at 233, are to be distinguished from

a no-evidence challenge asserting that on the face of the record, the evidence lacked

probative value. Kirkland, 424 S.W.3d at 135. Consequently, “when the challenge is

restricted to the face of the record -- for example, when expert testimony is speculative or

conclusory on its face -- then a party may challenge the legal sufficiency of the evidence

even in the absence of any objection to its admissibility.” Id. (citation omitted). In other

words, “even when some basis is offered for an [expert] opinion, if that basis does not, on

its face, support the opinion, the opinion is still conclusory.” Id. (citing Pollock, 284 S.W.3d

at 817; Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 638 (Tex. 2009) (expert opinion

might be conclusory because based on tests or data that do not support the conclusions

reached; such an opinion is not probative evidence)).

15
 Here, Roberson’s issue challenging the expert testimony does not require us to

look beyond what was stated at trial and we have no need to look to the data or

methodology underlying the expert opinion. Roberson challenges the expert testimony

as speculative and conclusory because (1) both Mize and Powers assumed disputed

facts to be true, to-wit: that the southeast barrel was three-fourths full when the workers

burned debris in it and “guessed” that such a barrel would take hundreds of gallons of

water to fully extinguish, (2) in determining the cause of the fire, Mize relied on information

that the workers were burning debris in the barrels the day before the fire, not three days

prior, and (3) neither Mize nor Powers ruled out other plausible causes of the fire. None

of these contentions require us to evaluate the underlying methodology, technique, or

foundational data. Therefore, we find Roberson’s failure to raise the issue at trial does

not preclude our review of his second issue on appeal.

We review a trial court’s ruling on expert testimony for an abuse of discretion.

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 578 (Tex. 2006). Under this standard, the

trial court has broad discretion in deciding whether to admit or exclude expert testimony.

Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex. 1998). We will

sustain an issue only if the trial court acted arbitrarily, unreasonably, or without reference

to any guiding rules or principles. Harris Cnty. Appraisal Dist. v. Hartman Reit Operating

P’ship, L.P., 186 S.W.3d 155, 157 (Tex. App.—Houston [1st Dist.] 2006, no pet). An

abuse of discretion is not demonstrated by a mere error in judgment. Id. Further, an

appellate court will not reverse the trial court’s conclusion simply because it would have

ruled differently. Lincoln v. Clark Freight Lines, Inc., 285 S.W.3d 79, 84 (Tex. App.—

16
Houston [1st Dist.] 2009, no pet.). In an abuse of discretion review, “[c]lose calls must go

to the trial court.” Larson v. Downing, 197 S.W.3d 303, 304 (Tex. 2006) (per curiam).

Expert opinion testimony on an ultimate issue is admissible and an expert may

testify in terms of opinion or inference and give the reasons for that opinion without prior

disclosure of the underlying facts or data. TEX. R. EVID. 704, 705. However, for an

expert’s opinion testimony on an ultimate issue to be competent, it must not be

speculative or conclusory. See Coastal Transp. Co., 136 S.W.3d at 233 (“[o]pinion

testimony that is conclusory or speculative . . . is ‘incompetent evidence,’ and . . . cannot

support a judgment”). Expert opinion that has no factual substantiation in the record is

speculative or conclusory. Beaumont v. Basham, 205 S.W.3d 608, 621 (Tex. App.—

Waco 2006, pet. denied); United Servs. Auto. Ass’n v. Croft, 175 S.W.3d 457, 463 (Tex.

App.—Dallas 2005, no pet.). “In other words, the expert must explain how he reached

his conclusion.” Croft, 175 S.W.3d at 464 (citation omitted). This is because “it is the

basis of the witness’s opinion, and not the witness’s qualifications or his bare opinions

alone, that can settle an issue as a matter of law; a claim will not stand or fall on the mere

ipse dixit of a credentialed witness.” Coastal Transp., Co., 136 S.W.3d at 232 (quoting

Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 1999)).

Mize’s fire report states as follows:

The men working in the area may have thought the fire in the barrel was
out. But with the amount of ash in the barrel closest to the point of origin, it
would have taken several days for the embers to completely burn out and
cool. I believe the wind was strong enough and could have blown embers
up against the wood and leaves along the outside of the structure, causing
the structure to burn.

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 Mize testified that he believed the fire had a human source because he had heard

that the workers were cleaning up the right-of-way and burning debris in barrels. When

asked about the care required when burning a barrel like the southeast barrel, he stated,

“To me, if this would have been done, in my experience, that either someone should have

constantly monitored that or more effort should have been made to extinguish a fire if you

were going to burn something like this.”

Both Powers and Mize testified that a five-gallon bucket of water like that used by

the workers would not extinguish a fire in a barrel that was three-quarters full of ash.

Rather, Powers guessed it would “probably take hundreds of gallons of water to fully

extinguish. It’s practically impossible without lots and lots of water.” Mize’s report stated

it could take several days for the embers to fully cool in a barrel three-fourths full of ash.

Mize testified that in his opinion, the fire started in the southeast barrel. He came to this

conclusion based on the fire patterns and wind direction. He believed the source of the

ignition was by a human cause because he had been told three workers were cleaning

the right-of-way and using the barrels to burn debris the day before the fire. He believed

the hot embers could have escaped from the barrel and mixed with dried plant material

on the ground, causing the fire to start and then spread to the neighboring barn.

Roberson contends Mize’s testimony was based on the “unfounded assumption”

that the southeast barrel was three-fourth’s full when the three workers extinguished the

fire. Further, Roberson argues, Mize’s opinion was based on the assumption that the

southeast barrel was not fully extinguished. Before Mize wrote his opinion, he was told

the three workers were burning materials in the barrels one day before the fire. However,

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no one informed Mize that the workers were burning debris in the barrels three days prior

to the fire.

Roberson asserts that the evidence shows the three workers extinguished the fires

in barrels that were less than three-fourths full on March 15, 2013. The barrels were

between eight inches and one-half full and the workers checked the barrels for smoke

and sparks, finding none. One of the workers, Ruiz, touched the barrel and it was cool.

The evidence also showed, Roberson argues, that the barrels the workers used on March

15 did not look like and were less full than the picture of the southeast barrel taken on

March 18. Mize discounted this evidence in reaching his opinion.

Roberson points us to Club Vista Dev. II, Inc. v. Oncor Elec. Delivery Co., LLC,

No. 05-12-01727-CV, 2014 Tex. App. LEXIS 9081 (Tex. App.—Dallas, Aug. 15, 2014,

pet. denied) (mem. op.). There, the court concluded “too great an analytical gap” existed

between the foundational data and the methodology employed by the experts and their

opinions. Id. at *25. The experts in that case had no experience with wildfires like the

one at issue there. One of the experts opined that the fire could have “easily been ignited

by a carelessly disposed cigarette.” Id. at *16, 24. He reached that conclusion after

receiving reports that a worker smoked on breaks during work hours. Id. at *24. The

expert also based his opinion on a “laboratory test” in which he dropped a lit cigarette on

leaves on a “metal plate” with wind generated by a small battery-powered fan. Id. The

court found there was no evidence that the worker had a cigarette in his possession on

the day of the fire or that he disposed of a cigarette at the scene of the fire. Id. at *25.

As such, the court determined, the experts’ opinions were based on assumed facts that

varied from the actual undisputed facts. Id. Roberson argues that like the expert

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testimony presented in Club Vista, Mize’s testimony was conclusory because it was

based on unfounded assumptions that contradicted the actual facts of this case, namely

that the barrels used by the three workers were not three-quarters full of ash and the

workers were not burning leaves on the day before the fire in question. As such, we agree

that Mize’s opinion that the fire was caused by the workers was conclusory because it

was based on unfounded assumptions. We reach the same conclusion with regard to the

testimony about how much water it would take to extinguish the fires in barrels that

contained debris similar to that in the southwest barrel or how long it would take each

barrel to cool such that it would not reignite days later.

Moreover, Roberson argues Mize’s and Power’s testimony is conclusory and

speculative because they failed to rule out other plausible causes, to-wit: a third-party

started a fire in the southeast barrel after Roberson’s workers extinguished the fire that

they had started on March 15. Specifically, he contends, the experts failed to rule out the

possibility that the fire was started by a vandal or other third person despite Roberson’s

previous problems with people lighting fires in the railroad right-of-way and the edge of

the Roberson property. In fact, Mize indicated that he was aware of two previous fires on

the Roberson property, both in July 2012, which were set by third parties. 8 Despite this

information, Mize never spoke with Roberson and opined that the scene appeared to be

in the same state it had been the day of the March 18 fire except for the fire suppression

8 Mize testified he found reports of two fires, one on July 17, 2012, and one on July 18, 2012. In

the report of the first fire, the author wrote “that kids had gotten in there and were setting stuff on fire, and
our guys went and put it out.” In the report of the second, the author “indicated that they had caught the
children that were actually setting the fire, and it was a small fire, and PD was notified, and after that, PD
took care of it.” Mize said he believed two juvenile arrests stemmed from those fires.

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efforts. Mize testified he did not contact Roberson “[b]ecause [Roberson] had already

admitted twice to the offense that he was receiving a citation for.”

In Wal-Mart Stores, Inc. v. Merrell, 313 S.W.3d 837, 840 (Tex. 2010), the Supreme

Court said, “[a]n expert’s failure to explain or adequately disprove alternative theories of

causation makes his or her own theory speculative and conclusory.” Roberson argues

the experts’ “no drag marks” reason for failing to investigate an unknown vandal was not

sufficient for many reasons, the most significant being that there was no explanation for

why a third person could not have started a fire in the southeast barrel in the same location

it was in on the previous Friday, particularly given how heavy the barrel was. The property

is accessible by the public and thus, anyone could have started a fire in the barrel.

Powers testified he did not thoroughly investigate Roberson’s allegation that a third party

could have started the fire because there was “no indications of drag marks.” He said, “I

did go back and look at the barrels to see if there was [sic] any drag marks or anything

that would indicate that the barrels had been moved at any time; I did not notice anything

at that time.” Powers testified that the barrels were “[e]xtremely heavy.” Mize testified “it

appeared that the scene was in the same state that it had been the day of the fire.” This

testimony indicates it is unlikely the barrels were moved from their positions on March 15

when they were used by Roberson’s employees to burn trash. But, that testimony alone

does not explain why it was Roberson’s workers who started the fire that damaged

Shackelford’s building and not an unnamed third party who may have started a

subsequent fire. A third party could have easily started the fire in the barrels as the barrels

were situated in the open right-of-way and did not need to be moved. Indeed, while it is

unlikely someone could have moved the barrels given their weight, it is certainly plausible

21
that the fire in question was caused by third persons. The expert testimony also did not

include the fact that shortly after the fire, Roberson reported someone had damaged his

fence. That damage, coupled with previous instances of unknown persons present on

and vandalizing or starting fires on the property, constituted facts that controverted the

theory that the workers burning leaves in the barrels three days before the fire was the

cause of the fire. See Merrell, 313 S.W.3d at 840 (expert’s specific causation theory

amounted to “little more than speculation”). As such, neither Mize nor Powers explained

or adequately disproved the alternate theory that an unknown third party caused the fire

and thus, their theory as to the cause of the fire was speculative and conclusory. Oncor

Elec. Delivery Co., LLC v. Southern Food Grp., LLC, 444 S.W.3d 699, 709 (Tex. App.—

Dallas 2014, no pet.); Sprabary v. Goodman Networks, Inc., No. 02-10-00200-CV, 2011

Tex. App. LEXIS 1824, at *4 (Tex. App.—Fort Worth March 10, 2011, no pet.) (mem. op.).

While we agree with Roberson and sustain his second issue to the extent that the

expert witnesses opined that the March 18 fire was caused by Roberson’s workers, this

conclusion does not, however, mean that we would necessarily sustain Roberson’s

objection to the expert opinions that the March 18 fire was caused by an improperly

extinguished fire in the southeast barrel—Roberson’s third issue.

ISSUES THREE—SUFFICIENCY OF THE EVIDENCE OF IMPROPERLY EXTINGUISHED FIRE

The conclusion that the March 18 fire originated from the southeast burn barrel is

an entirely different conclusion from who was responsible for the fire in the southeast burn

barrel. Using standard fire analysis techniques, Mize theorized that the March 18 fire

originated (or had its ignition source) in the southeast burn barrel. Nothing about the

quantity of combustible materials in the barrel, or when Roberson’s employees were

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burning leaves in that barrel, had anything to do with his conclusion that the southeast

burn barrel was the ignition source of the March 18 fire. Therefore, this conclusion was

not based on improperly assumed facts. Furthermore, while an opinion concerning the

quantity of water necessary to “adequately extinguish” a burn barrel fire might depend on

the amount of combustible material in the barrel at the time of the attempted

extinguishment, that opinion is not inconsistent with the ultimate conclusion that a fire in

the barrel was not fully extinguished. Because an opinion that a fire in the southeast burn

barrel was not fully extinguished (regardless of the quantity of combustible materials) was

proper and supported by the evidence, issue three is overruled.

ISSUE FOUR—SUFFICIENCY OF THE EVIDENCE TO SUPPORT PROXIMATE CAUSE

Through his fourth issue, Roberson challenges the trial court’s conclusion that he

was liable based on the alleged actions of his three workers. Roberson challenges the

trial court’s finding that “[t]he March 18, 2013 fire that destroyed Plaintiffs [sic] property

was caused by the incompletely extinguished fire in the barrel near the southeast portion

of the burned structure.”

Roberson argues that the three workers did not proximately cause the fire and,

therefore, he cannot be held liable to Shackelford. He contends there is no evidence that

the contents of the barrels were sufficiently hot to start a fire on Saturday, Sunday, or

Monday before the fire. Further, when the three workers extinguished the fire in the barrel

on March 15, the barrel was not three-quarters full. However, because it was three-

quarters full on March 18, when Powers investigated the scene, this amounts to some

evidence that third persons must have added fuel to the barrel. The workers all testified

the barrels they used looked more like the southwest barrel than the southeast barrel,

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meaning the barrels had less combustible materials in them. Roberson argues the

additional debris in the southeast burn barrel on March 18 indicates someone was present

on the scene between the time the three workers extinguished the fire on March 15 and

when the fire began on March 18. He testified he believed an unknown person started

the fire or relit the barrels after the material in the barrels had been extinguished by the

three workers. At trial, he said he “absolutely” blamed these unknown persons for the fire

and felt he did not owe anything to Shackelford.

Shackelford challenges Roberson’s theory that an unknown third party started the

fire. He notes that the trial court rejected that theory because there was no evidence

presented in support thereof. Roberson points to the evidence in the record that the

southeast burn barrel was three-fourths full at the time of the fire but that the workers did

not recall the barrels being that full. Roberson concludes that a third party must have

tampered with the barrels, particularly given the issues he had in the past with juveniles

starting fires on the property. 9 Shackelford argues that such a conclusion was certainly

not a forgone conclusion, and the trial court was free to accept or reject it.

Roberson argues that here, proximate cause can only be found by “stacking

inferences that have no basis in the record.” See Chubb Lloyds Ins. Co. v. H.C.B. Mech.,

Inc., 190 S.W.3d 89 (Tex. App.—Houston [1st Dist.] 2005, no pet.). He sets forth those

inferences as:

Inference No. 1: One would have to infer that a five gallon bucket would
not sufficiently cool a barrel that was between eight inches and one-half full
of ash. One would have to make this inference despite the fact that there

9 Roberson agreed he had reported that an unknown person destroyed a section of his fence. He
also agreed that he made the statement that “kids could have burned the building or relit the barrels.”

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 is no expert testimony concerning how much water it would take to cool a
barrel that was less than three-fourths full of ash. One would have to make
this inference despite the fact that all Three Workers testified that the fire
was out and that there was no smoke or sparks. One would have to make
this inference despite the fact that Mr. Ruiz put his hands on one of the
barrels on Friday and it was cool to touch. One would also have to make
this inference despite the fact that Mr. Ruiz checked one of the barrels on
Saturday and there was no fire or smoke or anything around the barrel.

Inference No. 2: One would have to infer that that the ash from the
Southeast barrel was hot enough to start a fire on Monday morning. One
would have to make this inference despite the fact that there is no expert
testimony concerning how long it would take for the ashes to fully cool when
a barrel is less than three-fourths full of ash. Even if the ashes were not
fully cool one would also have to infer that the ashes were hot enough to
start a fire.

Inference No. 3: One would have to infer that the fire in fact did begin in
the Southeast burn barrel due to the Three Workers not properly
extinguishing the fires on Friday, March 15, 2013. One would have to make
this assumption despite the fact the southeast burn barrel was more full on
Monday morning than on the Friday beforehand. One would have to make
this inference despite the fact that the barrels were in a right-of-way that
was not enclosed.

Roberson argues that because the evidence supporting proximate cause was so

weak and because proximate cause may not be established through inference stacking,

the evidence was insufficient to prove Roberson’s liability through the negligence of the

workers. By way of contrast, Shackelford argues the record contains evidence supporting

the trial court’s conclusions without resorting to inference stacking. He points to Powers’s

observation of two hot barrels in the right-of-way between the parties’ properties. The

barrels each had holes near the bottom and contained ash. They were located just a few

yards from the burned building. Powers also saw the nearby telephone pole was charred

on the southeast side, indicating the direction the fire had spread. Powers and Mize noted

that the most significant damage to Shackelford’s building was in the southeast corner of

the building. Mize testified that once he removed the debris, he saw patterns where the

25
fire had progressed. He saw a V-shaped pattern and noted that the southeast burn barrel

was at the point of the V. He testified this pattern was consistent with the wind direction

at the time of the fire. The burn pattern on the ground went from the southeast burn barrel

to the exposed wooden footing of the destroyed building. Mize testified that in his opinion,

the fire was human-caused, and the source of ignition was the southeast burn barrel. The

evidence showed the three workers had been burning debris in the right-of-way the Friday

before the Monday morning fire. The evidence also showed that the workers poured five

gallons of water on the fires in the fifty-five-gallon barrels. 10 While the workers visually

checked the barrels and felt for heat, both experts testified this would have been

insufficient to determine whether any embers remained. The experts also found there

was no evidence of anyone else burning anything on or near the property in the

intervening days before the fire. However, as discussed in our analysis of Roberson’s

first issue, neither expert truly investigated that possibility.

The two elements of proximate cause are cause in fact (or substantial factor) and

foreseeability. IHS Cedars Treatment Ctr. of Desoto, Texas, Inc. v. Mason, 143 S.W.3d

794, 798-99 (Tex. 2003). Cause in fact means that the act or omission in question was

a substantial factor in bringing about the complained-of injury and without it, the harm

would not have occurred. Id. Foreseeability means that the actor, as a person of ordinary

prudence, should have anticipated the dangers that his acts or omissions might impose

on another. Id. Foreseeability does not require that the actor anticipate the precise

manner in which an injury might be sustained so long as he is responsible for setting

10 The trial court determined in its Findings of Fact and Conclusions of Law that “[o]ne bucket of
water is insufficient to extinguish a fire in a barrel.”

26
about the events that caused the injury. Id. These elements cannot be satisfied by mere

conjecture, guess, or speculation. Id. at 799. Cause in fact is not established where the

defendant’s acts or omissions do nothing more than furnish a condition which makes the

complained-of injury possible. Id. at 799-800 (citing Doe v. Boys Clubs of Greater Dallas,

Inc., 907 S.W.2d 472, 477 (Tex. 1995)). The complained-of acts or omissions must be a

“substantial factor” in bringing about the injuries and without which the harm would not

have occurred. Id.

Here, the complained-of act or omission is Roberson’s failure to ensure that the

fire started in the southeast burn barrel was fully extinguished. Regardless of whether

there might have been an intervening third party, there was evidence that Roberson’s

employees were responsible for a fire in the southeast burn barrel on March 15. The

evidence was that they attempted to extinguish the fire with a five-gallon bucket of water.

Competent expert testimony was given that hot embers, sufficient to fan a subsequent

flame, can still exist after pouring a five-gallon bucket of water into a fifty-five-gallon drum

of burning debris. That a fire could be started three days later, after being fanned by the

wind, is not such an analytical gap as to amount to mere conjecture or surmise. It is a

reasonably prudent conclusion based on life’s experiences and it could easily be a

substantial factor causing the March 18 fire. As such, we will not disturb the trial court’s

analysis or implied fact finding.

As to Roberson’s third-party argument, in determining whether a defendant is liable

for a plaintiff’s injuries, Texas courts distinguish new and independent acts or omissions

(which destroy the causal connection between the original negligent act or omission and

the complained-of injury and becomes the new proximate cause) from “concurrent acts,”

27
which co-operate with the original act or omission in proximately causing the injury.

Mitchell v. Brandon Mill Assocs., Ltd., No. 05-96-00688-CV, 1998 Tex. App. LEXIS 5519,

at *7 (Tex. App.—Dallas Aug. 31, 1998, pet. denied) (mem. op.). Therefore, the presence

of a third-party tort feasor would relieve Roberson of liability only if the acts or omissions

of the third party were clearly sufficient to produce the result and the acts or omissions of

Roberson were clearly insufficient. Otherwise, they would be considered concurrent tort

feasors. Questions concerning third-party liability for concurrent acts are inherently fact

questions to be determined by the trier of fact. Issue four is overruled.

CONCLUSION

Except as otherwise provided herein, having overruled each of Roberson’s issues,

we affirm the judgment of the trial court.

Patrick A. Pirtle
Justice

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