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Wichita County v. Environmental Engineering & Geotechnics, Inc.

Court of Appeals of Texas, Third District, Austin

May 31, 2019

Wichita County, Texas, Appellant
v.
Environmental Engineering & Geotechnics, Inc., Appellee

          FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT NO. D-1-GN-18-001884, HONORABLE DUSTIN M. HOWELL, JUDGE PRESIDING

          Before Justices Goodwin, Baker, and Triana

          OPINION

          Gisela D. Triana, Justice

         Wichita County, Texas filed this appeal challenging the district court's order directing the County to pay $11, 283.89 to Environmental Engineering & Geotechnics, Inc. (EEG, a nonparty to the underlying suit) as "reasonable costs" for the production of documents in response to the County's subpoena. See Tex. R. Civ. P. 205.3(f). In two issues, the County challenges the district court's order: (1) refusing to permit the County to conduct discovery as to the reasonableness of EEG's costs, and (2) awarding EEG $11, 283.89 "based upon the limited evidence presented" to the court at the hearing. For the reasons that follow, we will affirm the district court's order in part, reverse and render in part, and reverse and remand in part for further proceedings.

         BACKGROUND

         In the underlying suit, the County sought civil penalties under the Texas Water Code against Southwest Convenience Stores (SCS), alleging that SCS was responsible for three leaking underground storage tanks that polluted the groundwater in Wichita County for over nineteen years. See Tex. Water Code § 7.351. The State of Texas appeared in the suit as a "necessary and indispensable party" under the Water Code and aligned itself with the County as a party plaintiff, requesting a portion of all civil penalties awarded in the case. See id. §§ 7.353, .107. EEG was the environmental consultant for SCS between 1997 and 2016 and was involved with the "South Beverly Site" where the tanks were located. EEG was not a party to the County's suit.

         The County served a subpoena on EEG requesting production of documents related to the South Beverly Site. EEG raised no objections to the County's requests. EEG responded to the subpoena by providing the County with electronic copies of documents in a DropBox folder. EEG also filed a motion for costs seeking to recoup costs associated with its document production and set the motion for hearing without conferring with the County in violation of the local rules.

         At the start of the hearing, the County announced that it had not been consulted about the setting and that it was not ready to proceed if EEG intended to present witness testimony on the motion for costs. If EEG intended to present witnesses, the County requested the opportunity to depose them about the basis for the claimed costs of $13, 916. The district court asked EEG whether it would present witness testimony, and EEG responded that it would. Having originally stated that it would grant a continuance to the County if it was not ready to proceed due to EEG's failure to consult with the County on a hearing date, the district court nevertheless proceeded to conduct an evidentiary hearing. The only witness to testify was EEG's chief operating officer, Mark Owens. The only documents offered into evidence were an invoice from EEG and two Office Depot receipts.

         Owens testified that he received a call from SCS's "parent company" on April 20, 2018, asking whether he "had any information on a particular site," and that he began researching it. At the time of the call, he was not told whether the parent company had been sued, and he did not know whether to expect service of a subpoena. Owens spent "probably half an hour" researching from April 20 to April 25. He recalled being served with the County's subpoena on April 25, 2018.

         Owens testified that he, EEG's executive vice president, Bruce Britten, and EEG's president/chief executive officer, Kimberly Millette, conducted the search for documents pertaining to the South Beverly site because they would know what to look for and where to look for it and because EEG had no administrative staff. Owens noted that he was the only person who had been with EEG "the entire length of time that this [site] was a project for the company." Owens said that Britten was involved with the site as the manager of this project from 2007 to 2016. Owens focused his search on "the stuff that predated [Britten]," but there was some overlapping effort, as Owens recalled "looking for some of the things that [Britten] was involved in, but [Britten] predominantly did the stuff he was in charge of from 2007 [forward]." Owens stated that Millette, who was in charge of "overall accounting functions and invoicing," would have searched for all the pertinent accounting records. Owens testified that he took the responsive documents to Office Depot/Office Max[1] for copying and scanning, and his wife retrieved the documents on May 7, 2018. An Office Depot receipt admitted into evidence shows that the May 7 transaction occurred at 11:20 a.m.

         During Owens's testimony, EEG offered into evidence its $13, 916.95 invoice:

         (Image Omitted)

         EEG's counsel told the district court that the executives' hourly rates in the invoice were "their normal billing rate[s]." Owens acknowledged that the invoice had "all the details, cost[s] of document production that [EEG was] seeking to recover," and he asked the district court to award costs as set forth in the invoice.[2]

         According to EEG's invoice, all three EEG executives who billed their time for "document production" listed the same block of time from April 20, 2018, to May 23, 2018. The County argued to the district court that the invoice included dates before the service of the County's subpoena (on April 25) and after the last set of documents had been retrieved from Office Depot (on May 7). Britten billed time at his professional geologist rate starting April 20, but Owens testified that he did not know whether Britten "had any actual time" between April 20 and April 24. Similarly, although the invoice shows that Millette billed time at her "president and CEO" rate starting April 20, Owens testified that Millette did not start billing her time on that day. Owens explained that "it was a block of time we used from when I started to when I stopped working. So that was kind of the block we used for everybody." EEG's counsel handled delivery of the responsive documents to the County, offering to provide them "on a CD or USB," and forwarded EEG's invoice to the County.

         Owens denied having any records of the EEG executives' time aside from the totals listed on the invoice. He testified that they did not enter daily time records or time sheets. He stated, "Not for a project like this. Only-just specifically for the date." Owens was unsure how much time the three EEG executives incurred after May 7, when the last documents had been retrieved, but it was "not a lot." He said that they would "go through [the boxes] when they came back."

         As for his own time, Owens acknowledged that the 22.5 hours represented "the actual hours that [he] put in searching for records requested by the subpoena." Owens testified that he billed the time spent searching for these records at a professional geologist rate that he thought was appropriate. The district court admitted the invoice into evidence over the County's objections that: (1) the invoice contained "hearsay within hearsay" and (2) Owens did not have a "proper foundation for testifying about this." In arriving at EEG's costs, the district court excluded the invoice's line item for legal fees. See BASF Fina Petrochemicals Ltd. P'ship v. H.B. Zachry Co., 168 S.W.3d 867, 874 (Tex. App.-Houston [1st Dist.] 2004, pet. denied) (concluding that "costs of production" under Rule 205.3(f) does not include attorney's fees). The district court also deducted the cost for hard copies that EEG never provided to the County.

         After the hearing, the district court ordered the County to pay EEG $11, 283.89 (the difference between the $13, 916.95 that EEG claimed minus $2, 000 in legal fees and minus $633.06 for hard copies not provided to the County) within seven days of the order as reasonable costs of production. This calculation included the time block billed by EEG's three executives in the invoice. The County nonsuited its claims against SCS without prejudice and filed this appeal. EEG subsequently sought a show-cause order against the County and its counsel or the county judge, but the district court declined to enter those orders ex parte, concluding that it was "inappropriate" to do so and that the matter "should be noticed for hearing." EEG then filed a motion for contempt and sanctions with the district court, and the County filed an emergency motion in this Court to stay enforcement of the order on costs. We issued an order staying the enforcement of the costs order and EEG's motion for contempt and sanctions. Wichita Cty. v. Environmental Eng'g & Geotechnics, Inc., No. 03-18-00434-CV, 2016 Tex.App. LEXIS 13931, at *1 (Tex. App.-Austin July 16, 2016, order).

         DISCUSSION

         First issue: Refusal to permit County to conduct discovery on EEG's demand for costs

         In its first issue, the County challenges the district court's order "refusing to permit" the County to conduct discovery as to the reasonableness of EEG's costs. Specifically, the County wanted to depose an EEG witness before the district court's hearing on the motion for costs. However, the County did not obtain an adverse ruling from the district court to preserve this issue for appeal. See Tex. R. App. P. 33.1(a). First, the County never noticed the deposition of an EEG witness. Second, the County did not request a continuance to depose an EEG witness before the motion for costs was heard. Third, the County did not renew its announcement of "not ready" for an evidentiary hearing when the district court stated its intent to proceed with the hearing or when Owens took the stand to testify in support of EEG's calculation of its costs for production of documents. On this record, we cannot conclude that the County has shown that the district court refused to permit discovery as to the reasonableness of EEG's costs. Accordingly, we overrule the County's first issue.

         Second issue: Sufficiency of evidence supporting $11, 283.89 as "reasonable costs of production"

         In its second issue, the County challenges the district court's order awarding $11, 283.89 to EEG as reasonable costs of production "based upon the limited evidence presented" at the hearing. Rule 205.3(f) states: "A party requiring production of documents by a nonparty must reimburse the nonparty's reasonable costs of production." Tex.R.Civ.P. 205.3(f). By ordering the County to pay EEG's "reasonable costs of production of $11, 283.89," the district court implicitly found that the amount of costs EEG requested-excluding the legal fees and the costs of hard copies never produced-was reasonable.

         Fairly construed, the County's briefing and oral argument as to its second issue challenge both the legal sufficiency and factual sufficiency of the evidence supporting the reasonableness of the costs in the district court's order. See Tex. R. App. P. 38.1(f) (providing that party's "statement of an issue or point will be treated as covering every subsidiary question that is fairly included"). The Texas Supreme Court has "firmly mandated that courts broadly construe issues to encompass the core questions and to reach all issues subsidiary to and fairly included within them." Rohrmoos Venture v. UTSW DVA Healthcare, LLP, No. 16-0006, 2019 Tex. LEXIS 389, at *14 (Tex. Apr. 26, 2019); see Majeed v. Hussain, No. 03-08-00679-CV, 2010 Tex.App. LEXIS 8477, at *25-26 (Tex. App.-Austin Oct. 22, 2010, no pet.) (mem. op.) (noting that brief must state concisely all issues or points presented for review "which are to be treated as covering every subsidiary question that is fairly included"). Here, a subsidiary issue challenging the factual sufficiency of the evidence is fairly included in the County's framing of its second issue: that the court erred by awarding EEG $11, 283.89 "based upon the limited evidence presented" to the court at the hearing and that the order "was not based upon sufficient evidence." See Rohrmoos Venture, 2019 Tex. LEXIS 389, at *14; Majeed, 2010 Tex.App. LEXIS 8477, at *20-21 (concluding that party's no-evidence and insufficient-evidence arguments were sufficiently specific to preserve his legal and factual sufficiency complaints) (emphasis added). The County's brief requested that this Court reverse the award of costs because it was not based on sufficient evidence, and the County's counsel stated during oral argument that the record shows EEG "incurred some costs from the 25th [of April] to the 7th [of May]." He stated that this is "similar to an attorney's fees case in which they don't segregate their fees."[3] Such cases present factual-sufficiency issues because unsegregated attorney's fees are some evidence of what the segregated amount should be. See Tony Gullo Motor I, L.P. v. Chapa, 212 S.W.3d 299, 314-15 (Tex. 2006). A subsidiary issue challenging the legal sufficiency of the evidence is also fairly included in the County's briefing, complaining about the lack of evidence supporting the costs that EEG billed before the subpoena was served and after the last responsive documents were retrieved. The County's counsel referenced these two time intervals during oral argument: "Those specifics are challenges to the legal sufficiency. There's just no evidence about why they should get costs from April 20th to the 25th or past May 7th." (Emphasis added.)

         Sidestepping the County's subsidiary issue on the factual sufficiency of the evidence would be inconsistent with the County's briefing and our own precedent. Cf. In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003) (noting that argument counsel had disavowed to court-unlike here-"was entirely consistent with" his statement of issue presented in his briefing); Majeed, 2010 Tex.App. LEXIS 8477, at *20-21 (concluding that party's arguments that "[t]here is no evidence" and that "the evidence is insufficient" were sufficiently specific to preserve party's complaints that "there was legally and factually insufficient evidence" to support certain elements of plaintiff's claim) (emphasis added); Crocker v. Attorney Gen. of Tex., 3 S.W.3d 650, 653 (Tex. App.-Austin 1999, no pet.) ("Although [appellant] does not state whether he contests the legal or the factual sufficiency of the evidence to support this finding, we construe his argument as a challenge to the factual sufficiency of the evidence."). The dissent suggests that we should narrow our review of the County's second issue to exclude its factual-sufficiency subpoint based on relief that the County requested during oral argument for its legal-sufficiency subpoint.[4] The dissent also faults the County for not specifically requesting a remand in its briefing, which sought reversal of the district court's order awarding costs "because it is not based upon sufficient evidence."

         Whether a party requests remand is immaterial if the party is ultimately entitled to reversal because the party's prayer does not determine the disposition of a case. See Garza v. Cantu, 431 S.W.3d 96, 108-09 (Tex. App.-Houston [14th Dist.] 2013, pet. denied) (noting that upon reversal Texas Rule of Appellate Procedure 43.3 allows for rendition and remand, but "nowhere does the rule suggest that when a trial court's judgment should be reversed, we must instead affirm it if the appellant fails to request the correct post-reversal disposition"); Ibrahim v. Young, 253 S.W.3d 790, 807 (Tex. App.-Eastland 2008, pet. denied) (concluding that party's prayer seeking reversal and remand did not limit court's authority to reverse and render); see also Tex. R. App. P. 43.3(a). This Court has likewise rejected the contention that a party waives any entitlement to a remand by failing to request such relief in its brief. Majeed, 2010 Tex.App. LEXIS 8477, at *28-29. We stated that a prayer omitting a request for the appropriate appellate remedy, or requesting the wrong one, is the sort of briefing defect that a party should be permitted to cure or should have no impact on the appellate court's judgment. Id. And we held that an appellant's "omission of an explicit prayer for a remand in his appellant's brief does not waive his entitlement to such relief or limit our power to award it under rule 43.3 if we sustain any of [appellant's] issues on appeal." Id. at *29. We decline to disregard our own precedent and unnecessarily narrow our review of the County's second issue.

         Standard of review

         We must discern the proper standard for reviewing the reasonableness of an award of document-production costs that is largely the sum of three line items block billed by nonlawyers. See Castro v. Precision Demolition LLC, Civil Action No. 3:15-CV-0213-D, 2017 U.S. Dist. LEXIS 205355, at *16 (N.D. Tex. Dec. 14, 2017) (noting that courts disfavor block billing because it impairs assessment of billing's reasonableness). To determine the correct standard of review, we look first to the rule itself. See Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998); Coronado v. Norman, 111 S.W.3d 838, 841 (Tex. App.-Eastland 2003, pet. denied) ("To determine the correct standard of review, we look at the rule.").

         Rule 205.3(f) provides that "[a] party requiring production of documents by a nonparty must reimburse the nonparty's reasonable costs of production." Tex.R.Civ.P. 205.3(f) (emphasis added). Rule 205.3(f) does not define the standard for reviewing a trial court's ruling on the reasonable costs of required production of documents from a nonparty. However, the rule does specify that such reimbursement is mandatory-i.e., that the requesting party "must reimburse" the nonparty-distinguishing this rule from other contexts in which a trial court may or may not make an award or reach a certain conclusion. Id.

         The dissent concludes that an abuse-of-discretion standard applies, relying in part on cases in which attorney's fees were awarded as a deterrent, penalty, or sanctions. In those cases, the award of attorney's fees followed a party's failure to file an answer, noncompliance with statutory expert-report requirements, and infringement on another's exercise of the right to free speech, petition, or association. See Tex. Civ. Prac. & Rem. Code §§ 27.009 (authorizing attorney's fees awards under Texas Citizens Participation Act), 74.351(b) (authorizing attorney's fees awards under Medical Liability Act); Tex.R.Civ.P. 244 (authorizing fees, taxed as costs, for attorney appointed for defaulting defendant served by publication); Petroleum Sols., Inc. v. Head, 454 S.W.3d 482, 489 (Tex. 2014) (noting that imposition of sanctions is reviewed under abuse-of-discretion standard); Crites v. Collins, 284 S.W.3d 839, 840 (Tex. 2009) (recognizing attorney's fees awarded under section 74.351(b)(1) as sanctions). This is not a case in which fees or costs were imposed as a consequence of a party's failure to act or wrongdoing. EEG never contended that the County's document request was improper and made no objection to it. There is no reason to penalize the County. The only purpose for awarding costs under Rule 205.3(f) is to "reimburse" the nonparty. Tex.R.Civ.P. 205.3(f).

         The dissent's standard-of-review discussion also relies on cases in which the authorizing statute makes an award of attorney's fees discretionary. See, e.g., Bocquet, 972 S.W.2d at 21 (discretionary award of fees under Declaratory Judgments Act in section 37.009 of Civil Practice & Remedies Code); Truck Ins. Exch. v. Mid-Continent Cas. Co., 320 S.W.3d 613, 623 (Tex. App.-Austin 2010, no pet.) (same); In re A.B.P., 291 S.W.3d 91, 98 (Tex. App.-Dallas 2009, no pet.) (discretionary award of fees in suit affecting parent-child relationship under section 106.002 of Family Code). Plainly, an abuse-of-discretion standard applies when the authorizing statute itself makes an award of attorney's fees discretionary. See Bocquet, 972 S.W.2d at 20. That is not the case under Rule 205.3(f), which requires reimbursement.

         Further, reimbursement-amount decisions under Rule 205.3(f) are distinguishable from procedural or trial-management decisions involving the admission of evidence, discovery sanctions, or attorney disqualification, indicating that we do not apply an abuse-of-discretion standard. See In re Doe, 19 S.W.3d 249, 253 (Tex. 2000) (noting that abuse-of-discretion standard applies when trial court has discretion either to grant or deny relief based on its factual determinations and typically applies to procedural or trial-management decisions such as admission of evidence, discovery sanctions, and attorney disqualification); Bocquet, 972 S.W.2d at 20-21 (concluding that award of attorney's fees under Declaratory Judgments Act is discretionary and applying multifaceted review of evidentiary and discretionary matters); see also In re Shipman, 540 S.W.3d 562, 565 (Tex. 2018) (orig. proceeding) (applying abuse-of-discretion standard to review trial court's order compelling discovery beyond rules of civil procedure). When a trial court makes a finding under Rule 205.3 about what amount of costs are reasonable, it makes a factual determination. See In re Doe, 19 S.W.3d at 253 (contrasting factual determinations from rulings requiring court to weigh policy considerations). "When the trial court acts primarily as a factfinder, appellate courts normally review its determinations under the legal and factual sufficiency standards." Id. (citing Bocquet, 972 S.W.2d at 21; Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994)); see Santos v. Texas Enters., No. 03-09-00579-CV, 2010 Tex.App. LEXIS 8322, at *5 (Tex. App.-Austin Oct. 15, 2010, no pet.) (mem. op.) ("We review a trial court's determination regarding the amount of attorney's fees [under statute mandating them] for legal and factual sufficiency of the evidence"); Brazos Elec. Power Coop., Inc. v. Weber, 238 S.W.3d 582, 583 (Tex. App.-Dallas 2007, no pet.) (noting that statute mandated award of attorney's fees and that "[o]ur review of the trial court's award, in turn, asks whether there was sufficient evidence that the fees awarded were in fact reasonable and necessary"); Cox v. Wilkins, No. 03-05-00110-CV, 2006 Tex.App. LEXIS 2598, at *18 (Tex. App.-Austin Mar. 31, 2006, pet. denied) (mem. op.) (noting that statute mandated award of attorney's fees and that "we review the amount awarded as attorney's fees under a sufficiency of the evidence standard"); see also Barnes v. University Fed. Credit Union, No. 03-10-00147-CV, 2013 Tex.App. LEXIS 4871, at *36 (Tex. App.-Austin Apr. 18, 2013, no pet.) (mem. op.) ("The standard of review for remitting excessive damages, including excessive attorneys' fees, is factual sufficiency."). For all these reasons, the cases cited by the dissent should not guide our discernment of the proper standard here.

         A factfinder's compensatory award of nonpunitive costs, like the one we reviewed in CS Custom Homes, LLC v. Stafford, No. 03-13-00315-CV, 2015 Tex.App. LEXIS 9837 (Tex. App.-Austin Sept. 23, 2015, no pet.) (mem. op.), is more instructive in this context. In Stafford, we reversed the factfinder's award of expenses claimed by an engineer because his invoices-listing time billed, hourly rates, and total amount charged-provided legally insufficient evidence of reasonable costs of repair. Id. at *16-17. When reviewing the award in that case, unlike in many attorney's fees cases, there was no basis for implying the factfinder's familiarity with "usual and customary" fees or for taking judicial notice of the reasonableness of fees claimed by a prevailing party. See, e.g., Tex. Civ. Prac. & Rem. Code §§ 38.001, .003; Smith v. Patrick W. Y. Tam Tr., 296 S.W.3d 545, 547 (Tex. 2009). The sole gauge of the reasonableness of the engineer's billing in Stafford-as with the professional geologists' and CEO's billing here-was the evidence presented to the factfinder. 2015 Tex.App. LEXIS 9837, at *16 (noting that record lacked evidence from which factfinder could reasonably discern that charges in invoice-whether hourly rate, amounts charged per task, or their total amount-were reasonable amounts to pay engineer for services he and his firm provided). We reviewed a challenge to the evidence about the reasonableness and necessity of the engineer's claimed expenses using a legal-sufficiency standard. Id. at *13-14. Similarly here, we will review the reasonableness of the $11, 283.89 award of document-production costs to EEG for legal and factual sufficiency. See In re Doe, 19 S.W.3d at 253 ("When the trial court acts primarily as a factfinder, appellate courts normally review its determinations under the legal and factual sufficiency standards." (citing Bocquet, 972 S.W.2d at 21; Catalina, 881 S.W.2d at 297)). When, as here, no findings of fact or conclusions of law are requested or filed, we imply all findings that are necessary to support the trial court's ruling and supported by the evidence. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002); Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). Because this appellate record includes the reporter's and clerk's records, the trial court's implied findings are not conclusive and may be challenged for legal and factual sufficiency. See BMC Software, 83 S.W.3d at 795. Even findings as to witness credibility must be reasonable, and a factfinder is not free to believe testimony that is conclusively negated by undisputed facts. City of Keller v. Wilson, 168 S.W.3d 802, 820 (Tex. 2005). We apply the same standards of review to the trial court's implied findings that we apply when reviewing the legal and factual sufficiency of evidence supporting a jury's verdict. MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 663 n.3 (Tex. 2009) (citing Catalina, 881 S.W.2d at 297).

         A movant who, like EEG, asserts a right to some active relief on his own behalf bears the burden of proving his right to that relief. See Pace Corp. v. Jackson, 284 S.W.2d 340, 350 (Tex. 1955) ("[I]f one party is asserting a right to damages or some other active relief in his own behalf, the burden of proving his right to that relief still rests upon him."). When a party challenges the legal sufficiency of an adverse finding on an issue on which it did not have the burden of proof, as the County does here, the party must demonstrate that there is no evidence to support the adverse finding. Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 215 (Tex. 2011). Evidence is legally sufficient if it would enable reasonable and fair-minded people to reach the verdict under review. Id. (citing City of Keller, 168 S.W.3d at 827). We credit favorable evidence if a reasonable factfinder could do so and disregard contrary evidence unless a reasonable factfinder could not. Id. We sustain a no-evidence challenge only if: (1) the record reveals a complete absence of evidence of a vital fact; (2) we are barred by rules of law or of 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 mere scintilla; or (4) the evidence establishes conclusively the opposite of the vital fact. City of Keller, 168 S.W.3d at 810, 822.

         When a party challenges the factual sufficiency of an adverse finding on an issue on which he did not have the burden of proof, he must demonstrate that the 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). In reviewing a finding for factual sufficiency, we examine the entire record, considering the evidence in favor of and contrary to the challenged finding. See id. We must not merely substitute our judgment for that of the trier of fact. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). If we determine the evidence is factually insufficient, we must detail the evidence relevant to the issue and explain how the contrary evidence greatly outweighs the evidence in support of the challenged finding. Id.; see also Windrum v. Kareh, No. 17-0328, 2019 Tex. LEXIS 52, at *45-46 (Tex. Jan. 25, 2019). We consider the legal-sufficiency challenge first. See ...


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