Texas Judiciary Online - HTML Opinion

O P I N I O N

Appellant Saskia = Madison, as=20 next friend of M.M., a minor, appeals a judgment in favor of = appellee Jane=20 Smith and against Warren Reid Williamson.[1] = Madison=20 contends (1) the trial court erred in granting Smith=92s = no-evidence motion=20 for summary judgment on Madison=92s negligence claims and in not = allowing an=20 adequate time for discovery; (2) the trial court abused its = discretion in=20 excluding certain summary judgment evidence; (3) Smith lacked = standing to=20 submit a proposed final judgment to the trial court, and the trial court erred in including a = statement that=20 Smith did not appear at trial in its final judgment; (5) = the trial=20 court erred in assessing court costs in favor of Smith; (6) the = trial=20 court erred in applying the election of remedies rule to = Madison=92s award=20 of actual damages; and (7) the trial court erred in applying the = statutory=20 damage caps to Madison=92s award of exemplary damages. We = conclude=20 that the trial court properly granted summary judgment to Smith, = allowed=20 adequate time for discovery, and any abuse of discretion in the = exclusion=20 of Madison=92s summary judgment evidence was harmless. We = further=20 conclude that Smith had standing, and the trial=20 court did not err in the form of its final judgment. Finally, we = conclude=20 that the trial court properly assessed court costs, and = properly=20 applied the election of remedies rule and statutory damage = caps. We=20 therefore affirm the trial court=92s judgment, both on =

the jury=92s verdict = against=20 Williamson and the summary judgment in favor of Smith. =

Background

In 1999, Williamson = lived with=20 his wife, Smith, and their three children, a daughter and two = sons. =20 Madison lived with her daughter a few houses down the = street. M.M.=20 was seven years old in 1999.

=20 Williamson did not appear for the jury trial on damages in this = case, so=20 the facts as presented with respect to the claims against him are=20 uncontested. During the summer of 1999, M.M. had planned to = spend=20 the night at Williamson=92s and Smith=92s house on two separate=20 occasions. On both occasions, Williamson bathed M.M. and his = daughter together. M.M. testified that during the baths, = Williamson=20 touched her =93privates.=94 M.M. could not recall if = Williamson used a=20 washcloth or his bare hands. M.M. did not spend the night at = Williamson=92s and Smith=92s house on either occasion because she = got scared=20 before she went to sleep. M.M. told Madison about the baths = when she=20 arrived at home on both occasions but Madison did not take any=20 action.

=20 During a weekend in October 1999, M.M. was playing with = Williamson=92s=20 children at Williamson=92s and Smith=92s house. M.M. was = playing video=20 games when Williamson asked to have a =93private talk=94 with = her. M.M.=20 accompanied Williamson into his room and he locked the door. = Williamson told M.M. that he wanted to show her something. =20 Williamson then undressed M.M. and performed oral sex on = her. M.M.=20 told Williamson to stop and she screamed for Smith to help = her. =20 Smith, however, was downstairs cooking dinner and she did not hear = M.M.=92s=20 cries for help. Williamson instructed M.M. not to tell = anyone about=20 what had happened. M.M. went home immediately, and she did = not see=20 Smith as she was leaving the house. M.M. told Madison about = the=20 incident as soon as she arrived at home. Madison called the = police=20 and M.M. never again visited Williamson=92s and Smith=92s = house. =20

=20 The State charged Williamson with indecency with a child and = aggravated=20 sexual assault in December 1999. Williamson separated from = Smith and=20 moved out of their home in June 2000. In January 2001, = Williamson=20 pleaded no contest to the Class A misdemeanor offense of assault, = pursuant=20 to a plea bargain with the State. See Tex. Pen. Code Ann. =A7 = 22.01=20 (Vernon Supp. 2006). The trial court deferred adjudication = of the=20 offense and placed Williamson on community supervision for two=20 years. In February 2001, the trial court modified the terms = of=20 Williamson=92s community supervision and added a provision = prohibiting=20 Williamson from traveling on the street where M.M.=92s house was=20 located. Williamson, however, was not prohibited from = visiting his=20 children or otherwise being present on Smith=92s property (which = is located=20 on the same street as M.M.=92s house), but to adhere to the terms = of his=20 community supervision, he had to enter Smith=92s residence from a = rear=20 entrance. M.M. alleges that after the trial court modified=20 Williamson=92s community supervision, he continued to appear on = the street=20 in front of her house and often made intimidating faces in an = attempt to=20 frighten her. Williamson and Smith divorced in October 2001. =

Madison civilly sued = Williamson and=20 Smith, on behalf of M.M., in 2002. In her petition, Madison = asserts=20 that Smith was negligent in allowing Williamson to sexually = assault M.M.,=20 and in allowing Williamson to violate the terms of his community=20 supervision by driving on the street where M.M.=92s house was = located. =20 Smith moved for summary judgment, asserting that Madison had = produced no=20 evidence that Smith had a duty to (1) prevent Williamson from = sexually=20 assaulting M.M., and (2) ensure Williamson=92s compliance with the = terms of=20 his deferred adjudication. The trial court granted Smith=92s = no-evidence summary judgment. Madison=92s claims against = Williamson=20 for assault, false imprisonment, and negligence proceeded to = trial. The=20 jury returned a verdict in favor of Madison, awarding compensatory = and=20 exemplary damages. After electing the most favorable = recovery, and=20 applying exemplary damages caps, the trial court entered a final = judgment=20 against Williamson of $3 million in actual damages and $1.75 = million in=20 exemplary damages, plus interest and costs.

The=20 Summary Judgment

Madison contends the trial = court erred=20 in granting Smith=92s no-evidence motion for summary judgment = because she=20 produced sufficient evidence to raise a genuine issue of material = fact=20 with regard to her negligence claims against Smith. In = addition,=20 Madison contends that the trial court abused its discretion in = excluding=20 certain summary judgment evidence. Smith responds that = Madison=20 produced no evidence of the element of duty.

At the outset, we = note that=20 =93in addition to showing an=20 abuse of discretion, a party complaining of error in the exclusion of = evidence must also show = that the=20 trial court=92s error was reasonably=20 calculated to cause, = and probably did cause, the rendition of an improper judgment.=94 City=20 of Brownsville v. Alvarado,=20 897 S.W.2d 750, 753 (Tex. 1995); see also Tex. R. App. P. = 44.1(a)(1);=20 McCraw v. Maris, 828 S.W.2d 756, 757 (Tex. 1992); = Bartosh v.=20 Gulf Health Care Ctr.-Galveston, 178 S.W.3d 434, 439 (Tex.=20 App.=97Houston [14th Dist.] 2005, no pet.); Centurion Planning = Corp. v.=20 Seabrook Venture II, 176 S.W.3d 498, 510 (Tex. = App.=97Houston=20 [1st Dist.] 2004, no pet.). In our review of this summary = judgment,=20 we consider all of the evidence Madison presented to determine if = she=20 raises a fact issue on her negligence claims. If the = evidence,=20 including evidence that the trial court excluded, does not raise a = fact=20 issue, then any abuse of discretion in the trial court=92s = exclusion of=20 evidence is harmless. See=20 Tex. = R. App.=20 P. 44.1(a)(1); Alvarado, 897 = S.W.2d at=20 753; McCraw, 828 S.W.2d at = 757.

A. Standard of=20 Review

In a = Rule 166a(i)=20 no-evidence summary judgment motion, the movant represents that no = evidence exists as to one or more essential elements of the = non-movant=92s=20 claims, on which the non-movant would have the burden of proof at=20 trial. Tex. R. = Civ.=20 P. 166a(i). = The=20 non-movant then must present evidence raising a genuine issue of = material=20 fact on the challenged elements. Id. A = no-evidence=20 summary judgment is essentially a pre-trial directed = verdict. Bendigo=20 v. City of Houston, 178 = S.W.3d 112,=20 113=9614 (Tex. = App.=97Houston=20 [1st Dist.] 2005, no pet.); Jackson v. = Fiesta=20 Mart, 979 S.W.2d 68, 70=9671 (Tex. App.=97Austin 1998, no = pet.). On=20 review, we ascertain whether the non-movant produced more than a = scintilla=20 of probative evidence to raise a genuine issue of material = fact. =20 Jackson, 979 S.W.2d at 70=9671. More than a scintilla = of=20 evidence exists if the evidence =93=91rises to a level that would = enable=20 reasonable and fair-minded people to differ in their = conclusions.=92=94 =20 King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. = 2003)=20 (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d = 706, 711=20 (Tex. 1997)). If the evidence does no more than create a = mere=20 surmise or suspicion of fact, less than a scintilla of evidence=20 exists. Havner, 953 S.W.2d at 711. To defeat a=20 no-evidence motion for summary judgment, the respondent is not = required to=20 marshal her proof; her response need only point out evidence that = raises a=20 fact issue on the challenged elements. Tex. R. Civ. P. 166a(i) = cmt.

B. =20 Negligence

A=20 negligence cause of action has three elements: (1) a legal duty owed by one = person to=20 another, (2) a breach of that duty, and (3) damages proximately=20 caused by the breach. D. Houston, = Inc. v.=20 Love, 92 S.W.3d 450, 454 (Tex. 2002). The threshold = inquiry in a=20 negligence case is duty. Centeq Realty, Inc. v. = Siegler, 899=20 S.W.2d 195, 197 (Tex. 1995);=20 Mathis v. RKL Design/Build, 189 S.W.3d 839, 844 (Tex. = App.=97Houston=20 [1st Dist.] 2006, no pet.). The = existence of=20 duty is a question of law for the court to decide from the facts=20 surrounding the occurrence at issue. Van = Horn v.=20 Chambers, 970 S.W.2d 542, 544 (Tex. 1998); Siegler, 899 = S.W.2d at=20 197; Greater Houston Transp. Co. v. Phillips, = 801=20 S.W.2d 523, 525 (Tex. 1990). In = determining=20 whether a duty exists, a court should consider several = interrelated=20 factors, including the risk, foreseeability, and likelihood of = injury=20 weighed against the social utility of the actor=92s conduct, the = magnitude=20 of the burden of guarding against the injury, and the consequences = of=20 placing the burden on the defendant. = Mission=20 Petroleum Carriers, Inc. v. Solomon, 106 S.W.3d 705, 710 (Tex. = 2003);=20 Bird = v.=20 W.C.W., 868 = S.W.2d 767,=20 769 (Tex. 1994); Phillips, 801 S.W.2d at=20 525. Of all = these=20 factors, foreseeability of the risk is the foremost and dominant=20 consideration. Phillips, 801 S.W.2d at=20 525. Foreseeability=20 requires only that the general danger, not the exact sequence of = events=20 that produced the harm, be foreseeable. Mellon Mortgage = Co. v.=20 Holder, 5 S.W.3d 654, 655 (Tex. 1999); Walker v.=20 Harris, 924 = S.W.2d 375,=20 377 (Tex. 1996); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d = 546, 551=20 (Tex. 1985). The Texas Supreme Court has articulated a = two-prong=20 test for foreseeability: (1) that the injury be of such a general=20 character as might reasonably have been anticipated; and (2) that = the=20 injured party should be so situated with relation to the wrongful = act that=20 injury to him or one similarly situated might reasonably have been = foreseen. Mellon Mortgage, 5 S.W.3d at=20 655;=20 Nixon, 690 = S.W.2d at=20 551.

1. Negligent = Failure to=20 Prevent Sexual Assault

=20 Madison first contends that Smith was negligent in failing to = prevent=20 Williamson from sexually assaulting M.M. because Smith owed M.M. a = duty of=20 care as the owner of the property where the sexual assault=20 occurred.

=20 =93Generally,=20 a person has no legal duty to protect another from the criminal = acts of a=20 third person.=94 = Butcher=20 v. Scott, 906 S.W.2d 14, 15 (Tex. 1995); Siegler, 899 = S.W.2d at=20 199. Property owners,=20 however, owe a duty to those who may be harmed by the criminal = acts of=20 third parties if the risk of criminal conduct is so great that it = is both=20 unreasonable and foreseeable. See Mellon=20 Mortgage, 5 = S.W.3d at=20 655; = Timberwalk=20 Apartments, Partners, Inc. v. Cain, 972 = S.W.2d 749,=20 756 (Tex. 1998); Nixon, 690 S.W.2d at 550. In = considering whether a particular criminal act was so foreseeable = and=20 unreasonable as to impose a duty upon a landowner to an invitee = such as=20 M.M., we first examine the particular criminal conduct that = occurred in=20 light of =93specific previous crimes on or near the = premises.=94 Mellon = Mortgage, 5 S.W.3d at 656 (quoting Walker, 924 = S.W.2d at=20 377). The Texas Supreme Court described this=20 examination in Timberwalk:

In determining whether the = occurrence of certain criminal conduct on a landowner=92s property = should=20 have been foreseen, courts should consider whether any criminal = conduct=20 previously occurred on or near the property, how recently it = occurred, how=20 often it occurred, how similar the conduct was to the conduct on = the=20 property, and what publicity was given the occurrences to indicate = that=20 the landowner knew or should have known about them.=20

Timberwalk,=20 972 S.W.2d at 757. If, = after=20 applying the Timberwalk factors, we determine that the = general=20 danger of the criminal act was foreseeable, we then apply the = second prong=20 of the foreseeability analysis and determine whether it was reasonably foreseeable that the injured = party, or=20 one similarly situated, would be the victim of the criminal act.=20 Mellon = Mortgage, 5 S.W.3d at 656=9657. =93In=20 essence, we consider whether the plaintiff was within the range of = the=20 defendant=92s apprehension such that her injury was = foreseeable.=94 =20 Id. at 657 (citing Palsgraf v. Long Island R.R. Co., = 248=20 N.Y. 339, 344, 162 N.E. 99, 100 (1928)); see also = Siegler,=20 899 S.W.2d at 197.

In this = case,=20 Madison failed to produce evidence that Smith should have foreseen = that=20 Williamson would engage in inappropriate sexual conduct with M.M. = on her=20 property. The record contains no evidence that Williamson = was ever=20 accused of committing any crime before M.M. accused him of sexual = assault=20 in the fall of 1999. Additionally, there is no evidence that = Smith=20 knew about any prior inappropriate sexual conduct on the part of=20 Williamson with regard to M.M., his own children, or anyone = else. =20 The record also contains no evidence that Smith knew that = Williamson=20 bathed M.M. with his daughter on two occasions during the summer = of=20 1999. Smith testified that she first learned about the baths = from=20 one of her sons after M.M. had accused Williamson of sexual = assault in=20 October 1999. Smith=92s son also told an employee at the = Children=92s=20 Assessment Center that Smith did not know about the baths until he = told=20 her. M.M. told Police Officer S. Valenta that Smith was at = home the=20 first time Williamson gave her a bath. Dr. Carmen Petzold, = one of=20 Madison=92s expert witnesses, opined that based on M.M.=92s = statements to=20 Officer Valenta, Smith was probably aware that Williamson had = bathed=20 M.M. Petzold=92s speculation, however, does not constitute = evidence=20 that Smith was aware of Williamson=92s inappropriate conduct = because it is=20 not based on any personal knowledge.

Considering all=20 the evidence in the record (including the evidence excluded by the = trial=20 court), we have found no evidence that Smith reasonably should = have=20 foreseen that Williamson would engage in inappropriate sexual = conduct on=20 her property at the time such acts took place. See = Mellon=20 Mortgage, 5 = S.W.3d at=20 655;=20 Timberwalk, 972 = S.W.2d at=20 756; Nixon, 690 S.W.2d at 550. Madison=20 therefore did not raise a fact issue on the element of duty for a=20 negligence cause of action. See Sanders v. Herold, = 217 S.W.3d=20 11, 17 (Tex. App.=97Houston [1st Dist.] 2006, no pet.) (affirming = summary=20 judgment on ground that no evidence existed that parents should = have=20 foreseen that son would molest child, thus precluding imposition = of a=20 legal duty to prevent criminal conduct). Compare Childers = v.=20 A.S., 909 S.W.2d 282, 289 (Tex. App.=97Fort Worth 1995, no = writ)=20 (holding that defendants had no duty to prevent sexual misconduct = on part=20 of their daughter with neighbor child because conduct was not = foreseeable=20 due to defendant=92s lack of knowledge of conduct) with = Isbell v.=20 Ryan, 983 S.W.2d 335, 341 (Tex. App.=97Houston [14th Dist.] = 1998, no=20 pet.) (imposing duty on defendant to prevent sexual assault of = minor girl=20 at hands of her son when CPS investigator told defendant that her = son was=20 probably responsible for physical and sexual abuse of another = girl) and=20 Doe v. Franklin, 930 S.W.2d 921, 928=9629 (Tex. App.=97El Paso = 1996, no=20 writ) (imposing duty on defendant to prevent further sexual = assaults of=20 her granddaughter when granddaughter specifically told defendant = that her=20 grandfather had molested her) and Cain v. Cain, 870 = S.W.2d=20 676, 680=9681 (Tex. App.=97Houston [1st Dist] 1994, writ denied) = (imposing=20 duty on defendant to prevent sexual assault of his niece when he = allowed=20 his son-in-law and niece to live at his house and he knew that his = son-in-law had previously been convicted of sexually assaulting=20 minor). The trial court, therefore, properly granted = Smith=92s motion=20 for summary judgment on Madison=92s claim that Smith was = negligent=20 in failing to prevent Williamson from assaulting M.M.. See Tex. R. Civ. P.=20 166a(i).

2. Negligent = Failure to=20 Prevent Violations of Community Supervision

=20 Madison also contends that Smith was negligent in failing to = prevent=20 Williamson from driving on the street where M.M.=92s house was = located, in=20 violation of the terms of his community supervision, because a = special=20 relationship existed between Smith and Williamson, giving rise to = Smith=92s=20 duty to control Williamson=92s conduct.

=93Generally, there=20 is no duty to control the conduct of others.=94 Tex. Home = Mgmt.,=20 Inc. v. Peavy, 89 S.W.3d 30, 34 (Tex. 2002). This = general=20 rule does not apply when a special relationship exists between the = actor=20 and the third person, which imposes a duty upon the actor to = control the=20 third person=92s conduct, or a special relationship exists between = the actor=20 and the other person which gives the other person a right to = protection. See id.; = Van=20 Horn, 970 = S.W.2d at=20 546=9647; Golden Spread Council, Inc. v. = Akins, 926=20 S.W.2d 287, 292 (Tex. 1996); Phillips, 801 S.W.2d at = 525. The=20 relationship must impose a duty upon the actor to control the = third=20 person=92s conduct. = Van=20 Horn, 970 = S.W.2d at=20 546=9647. =93These = [special=20 relationships] include the relationship between employer and = employee,=20 parent and child, and independent contractor and contractee under = special=20 circumstances.=94 Phillips, 801 S.W.2d = at=20 525. The Texas Supreme Court also recently found that a = special=20 relationship existed between a medical care facility for the = mentally=20 retarded and a patient, giving rise to the facility=92s duty to = control the=20 actions of the patient. See Peavy, 89 S.W.3d = at=20 36. No Texas court has held that such a relationship exists = between=20 a husband and wife.

The = record in=20 this case contains no evidence that Smith had any duty, right, or = ability=20 to control Williamson=92s conduct. Nothing inherent in this=20 husband-wife relationship gives rise to a fact issue that either = spouse=20 had the right to control the other. See Doe, = 930=20 S.W.2d at 927 (finding no special relationship between husband and = wife=20 because wife had no right to control husband); Tex. Fam. Code Ann. =A7 = 3.201(c)=20 (Vernon 2006) (=93A = spouse does=20 not act as an agent for the other spouse solely because of the = marriage=20 relationship.=94). Considering all the = evidence in the=20 record (including the evidence excluded by the trial court), no = evidence=20 raises a fact issue as to a special relationship between Smith and = Williamson. See Van Horn, 970 S.W.2d at = 546=9647;=20 Doe, 930 S.W.2d at 927. Smith therefore did = not have a=20 duty to control Williamson=92s conduct, and the=20 trial court properly granted summary judgment on = Madison=92s claim=20 that Smith was negligent in failing to prevent Williamson from = driving=20 near M.M.=92s house. See=20 Peavy,=20 89 S.W.3d at 34. =

C. = Adequate Time=20 for Discovery

=20 Madison contends that the trial court erred in granting Smith=92s=20 no-evidence motion for summary judgment because adequate time for=20 discovery had not elapsed at the time the trial court granted the=20 motion. See Tex. R.=20 Civ. P. 166a(i). Madison = filed=20 suit in October 2002, and Smith and Williamson answered in = November. =20 The trial court set the original discovery deadline for August 22, = 2003=20 and the original trial date for September 22, 2003. Smith = moved for=20 a no-evidence motion for summary judgment a week after the August=20 discovery deadline. The trial court later reset the trial = date for=20 December 2003, and discovery continued. The trial court = granted=20 Smith=92s summary judgment motion on December 5, = 2003.

=20 Texas Rule of Civil Procedure 166a(i) provides:

After adequate time for = discovery, a=20 party without presenting summary judgment evidence may move for = summary=20 judgment on the ground that there is no evidence of one or more = essential=20 elements of a claim or defense on which an adverse party would = have the=20 burden of proof at trial. The motion must state the elements = as to=20 which there is no evidence. The court must grant=20 the motion unless the respondent produces summary judgment = evidence=20 raising a genuine issue of material fact.

Id. = =93Whether=20 a nonmovant has had adequate time for discovery under rule 166a(i) = is case=20 specific.=94 Rest. Teams=20 Int=92l, Inc. v. MG Sec. Corp., 95 S.W.3d 336, 339 (Tex. = App.=97Dallas=20 2002, no pet.). Rule 166a(i) does not require that discovery = must=20 have been completed, only that there was =93adequate = time.=94 =20 Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 = (Tex.=20 App.=97Houston [14th Dist.] 2000, pet. denied). To determine whether adequate time for = discovery has=20 elapsed, we examine such factors as: (1) the nature of the case; = (2) the=20 nature of evidence necessary to controvert the no-evidence motion; = (3) the=20 length of time the case was active; (4) the amount of time the = no-evidence=20 motion was on file; (5) whether the movant had requested stricter=20 deadlines for discovery; (6) the amount of discovery already = completed;=20 and (7) whether the discovery deadlines in place were specific or=20 vague. Brewer & Pritchard, P.C. v. Johnson, 167 = S.W.3d=20 460, 467 (Tex. App.=97Houston [14th Dist.] 2005, pet. denied); = Rest.=20 Teams Int=92l, Inc., 95 S.W.3d at 339;=20 McMahan v.=20 Greenwood, 108 = S.W.3d 467,=20 498 (Tex. App.=97Houston [14th Dist.] 2003, pet. denied); = Martinez v.=20 City of San Antonio, 40 S.W.3d 587, 591 (Tex. App.=97San = Antonio 2001,=20 pet. denied). We review a trial court=92s = determination=20 of whether an adequate time for discovery has passed under an = abuse of=20 discretion standard. Fuqua, 29 S.W.3d at 145. = A = trial court=20 abuses its discretion if it acts in an arbitrary or unreasonable = manner=20 =93without reference to any guiding rules or principles.=94 = Garcia v.=20 Martinez, 988 S.W.2d 219, 222 (Tex.=20 1999).

=20 Madison=92s lawsuit had been on file for over one year at the time = the trial=20 court granted summary judgment. The trial court also = extended the=20 discovery period on one occasion, and allowed Madison to file = additional=20 summary judgment evidence late. Furthermore, Madison has = made no=20 effort to specify the additional evidence she needed to respond to = the=20 motion, or the reason she could not obtain it during the discovery = period. See Tex. R.=20 App. P. 166a(i) cmt (=93A discovery period set by pretrial = order=20 should be adequate opportunity for discovery unless there is a = showing to=20 the contrary, and ordinarily a motion under paragraph (i) would be = permitted after the period but not before.=94). We also note = that=20 Madison filed her own no-evidence summary judgment motion on = August 22,=20 2003, asserting that adequate time for discovery had elapsed on = Smith=92s=20 defamation claim because the trial court=92s discovery deadline = had=20 passed. Under these circumstances, we hold that the trial = court did=20 not abuse its discretion in determining that adequate time for = discovery=20 had elapsed on Madison=92s negligence claims and in granting = Smith=92s=20 no-evidence motion for summary judgment. See LaRue = v.=20 Chief Oil & Gas, L.L.C., 167 S.W.3d 866, 873 (Tex. = App.=97Fort Worth=20 2005, no pet.) (holding that trial court did not abuse its = discretion in=20 determining that adequate time for discovery had elapsed); McMahan, 108 = S.W.3d at=20 498=9699 (same); Fuqua, 29 S.W.3d at 145=20 (same).

Standing

=20 Madison contends that because the trial court granted Smith=92s = motion for=20 summary judgment in an interlocutory order, Smith was not a party = to the=20 final judgment and therefore lacked standing to prepare and submit = a=20 proposed final judgment to the trial court. After the trial = court=20 granted Smith=92s motion for summary judgment, Madison=92s = remaining claims=20 against Williamson proceeded to trial, and the jury returned a = verdict in=20 her favor. The trial court never severed Madison=92s claims = against=20 Smith, thus the trial court=92s interlocutory order granting = summary=20 judgment was not final. See Lehmann=20 v. Har-Con Corp.,=20 39 S.W.3d 191, 205 (Tex. 2001) (=93[A]n order or judgment is not = final for=20 purposes of appeal unless it actually disposes of every pending = claim and=20 party or unless it clearly and unequivocally states that it = finally=20 disposes of all claims and all parties.=94).=20 Madison moved the trial court to enter = a final=20 judgment. Smith responded, submitting her own proposed final = judgment for the trial court=92s consideration. The trial = court then=20 entered a final judgment.

Texas Rule of Civil = Procedure=20 305 provides that =93[a]ny party may prepare and submit a proposed = judgment=20 to the trial court for signature.=94 Tex. R. Civ. P. = 305. The=20 trial court=92s interlocutory order granting Smith=92s motion for = summary=20 judgment did not terminate Smith=92s status as a party to this=20 lawsuit. Madison=92s pleadings named Smith as a defendant at = all=20 times, and the trial court never severed Madison=92s negligence = claims=20 against Smith. Smith had an interest in the content of the = trial=20 court=92s final judgment because the judgment would make the = interlocutory=20 order granting Smith=92s motion for summary judgment a final, = appealable=20 order. See=20 Lehmann,=20 39 S.W.3d at 205. The trial court therefore = did not=20 err in considering Smith=92s final judgment.

Form of=20 the Judgment

=20 Madison contends that the trial court erred in including the = following=20 language in its final judgment: =93Defendant Jane Smith did not = appear at=20 trial as she had already been granted an interlocutory summary = judgment by=20 order of this Court dated on or about December 5, 2003.=94 = Madison=20 asserts that this language is inaccurate because Smith appeared on = the=20 first day of trial and announced that she was present to observe = but would=20 not participate.

=20 Texas=20 courts apply the common law presumption that whatever is omitted = from the=20 record is relevant to and supports the judgment on=20 appeal. W = & F=20 Transp., Inc. v. Wilhelm, 208 S.W.3d 32, 37 (Tex. = App.=97Houston [14th=20 Dist.] 2006, no pet.). =93To complain on appeal about a matter = that would=20 not otherwise appear in the record, a party must file a formal = bill of=20 exception.=94 Tex. = R. App.=20 P. 33.2. =20 =

The reporter=92s = record in this=20 case contains no evidence that Smith appeared on the first day of=20 trial. Additionally, the appearance sheets at the beginning = of each=20 volume of the reporter=92s record do not reflect that Smith or her = counsel=20 appeared at trial. Furthermore, Madison failed to file a = formal bill=20 of exception to preserve this issue for appeal. See = id. Accordingly, because = the record=20 contains no evidence that Smith appeared at trial, we apply the = common law=20 presumption and assume that Smith did not appear at trial in = accordance=20 with the statements in the trial court=92s judgment. See Wilhelm, 208 = S.W.3d at 37;=20 see also Nicholson = v. Fifth=20 Third Bank, 226 S.W.3d = 581, 583=20 (Tex. App=97Houston [1^st Dist.] 2007, no pet.) = (presuming that=20 evidence supported trial court=92s judgment because appellant = failed to=20 present sufficient record on appeal); Willms v. Americas Tire Co., 190 = S.W.3d 796,=20 806 (Tex. App.=97Dallas 2006, pet. denied) (same). We = therefore hold=20 that the trial court did not err in including the disputed = language in its=20 final judgment.

Judgment

=20 With respect to the final judgment, Madison contends that the = trial court=20 (1) abused its discretion in adjudicating court costs in favor of = Smith,=20 (2) erroneously applied the election of remedies rule, and (3) = erroneously=20 applied statutory damage caps.

A. Court = Costs

=20 The trial court taxed costs against Williamson for Madison=92s = case against=20 him and against Madison for her case against Smith. Madison = contends=20 that the trial court abused its discretion in adjudicating = Smith=92s court=20 costs against Madison because Smith failed to provide the trial = court and=20 Madison with an accounting of her court costs before the trial = court=20 entered its final judgment. See Varner v. Howe,=20 860 S.W.2d 458, 466 (Tex. App.=97El Paso 1993, no pet.) (=93All = that [Texas=20 Civil Practice and Remedies Code section 31.007(a)] seems to = [require] is=20 that the successful party present to the trial judge and opposing = counsel=20 at some time before the judgment is signed an itemized list of = costs and=20 fees incurred during the lawsuit so that the judge can determine = which=20 costs and fees are properly includable in the judgment.=94).=20

The = Texas Rules=20 of Civil Procedure provide that =93[t]he successful party to a = suit shall=20 recover of his adversary all costs incurred therein, except where=20 otherwise provided.=94 Tex. R.=20 Civ. P. 131. =93The = court may,=20 for good cause, to be stated on the record, adjudge the costs = otherwise=20 than as provided by law or these rules.=94 Tex. R. Civ. P. = 141. =20 =93A =91successful party=92 is one who obtains a = judgment of a=20 competent court vindicating a civil claim of right.=94[2] =20 Univ. = of=20 Houston-Clear Lake v. Marsh, 981 S.W.2d 912, 914 = (Tex.=20 App.=97Houston [1st Dist.] 1998, no pet.);=20 accord Bayer Corp. v. DX Terminals, Ltd., 214 S.W.3d = 586,=20 611=9612 (Tex. App.=97Houston [14th Dist.] 2006, pet. denied); = see also=20 Tex. River Barges v. City of San Antonio, 21 S.W.3d 347, 358 = (Tex.=20 App.=97San Antonio 2000, pet. denied) (awarding costs to defendant = who=20 prevailed on motion for summary judgment). The allocation of = costs=20 is a matter for the trial court=92s discretion and cannot be = overturned on=20 appeal unless the trial court abused its discretion. = Marsh,=20 981 S.W.2d at 914. = Here, the=20 trial court taxed costs against the unsuccessful party and thus = acted=20 within its discretion. Id.

In = response to a=20 request for an award of costs, the=20 court=92s role is to adjudicate which party or parties is to bear = the costs of court, not to = determine the=20

correctness of specific items. See Reaugh = v.=20 McCollum Exploration Co., 140 = Tex. 322,=20 325, 167 S.W.2d 727, 728 (1943); Pitts v. Dallas = County=20 Bail Bond Bd., 23 S.W.3d 407, 417 (Tex. App.=97Amarillo 2000, = pet.=20 denied).=20 The trial court should state in its judgment = which party=20 is to pay costs. See Tex. R. Civ. P. 131; = Reaugh, 167 = S.W.2d at=20 728; Pitts, 23 S.W.3d at 417. =20 The judgment should not state the amount taxed as costs, but only = that=20 costs are awarded against a certain party. See Pitts, = 23=20 S.W.3d at 417. Taxing=20 costs, as distinguished from adjudicating those costs, is merely a = ministerial duty of the clerk. Wood v. = Wood,=20 159 Tex. 350, 358, 320 S.W.2d 807, 813 (1959); see also = Tex. R. Civ. P. 129, = 149,=20 622.

The = rules do not=20 require a = successful=20 party in a lawsuit to submit an accounting of her = court=20 costs to the trial court and opposing counsel before the entry of = a=20 judgment adjudicating costs. = See Tex. Civ. Prac. = &=20 Rem. Code Ann. =A7 31.007(a); = Tex. R. Civ. P. 129, = 131, 149,=20 622. Rather, Texas = Civil=20 Practice and Remedies Code section 31.007(a) requires the = successful party=20 to submit a record of its court costs to the court clerk so that = the clerk=20 can perform its ministerial duty and tax costs in accord with = Texas Rule=20 of Civil Procedure 622. See Tex. Civ. Prac. & Rem. = Code=20 Ann. =A7 31.007(a); Tex. R.=20 Civ. P. 622. The trial court in this case therefore = did not=20 abuse its discretion in adjudicating Smith=92s court costs against = Madison=20 despite Smith=92s failure to submit an accounting of her costs = before the=20 trial court=92s adjudication of costs.[3] =20

B. = Election of=20 Remedies

Madison next = contends=20 that the trial court erroneously applied the election of remedies = rule to=20 limit her recovery of actual damages from Williamson. We=20 = disagree.
A=20 party may sue and seek damages on alternative theories of = liability. =20 Waite Hill Servs., Inc. v. World Class Metal Works, Inc., = 959=20 S.W.2d 182, 184 (Tex. 1998). If a plaintiff pleads alternate = theories of liability, a judgment awarding damages on each = alternate=20 theory may be upheld if the theories depend on separate and = distinct=20 injuries and if separate and distinct damages findings are made as = to each=20 theory. See Birchfield v.=20 Texarkana Mem'l Hosp., 747 = S.W.2d 361,=20 367 (Tex. 1987). = =93Under the one-satisfaction rule, [however,] a plaintiff is = entitled to=20 only one recovery for any damages suffered because of a particular = injury.=94 Utts v. Short, 81 S.W.3d 822, 831 (Tex. = 2002);=20 accord Tony Gullo Motors I, L.P. v. Chapa, 212 = S.W.3d 299,=20 303 (Tex. 2006); Crown = Life Ins.=20 Co. v. Casteel, 22 = S.W.3d 378,=20 390 (Tex. 2000); Stewart Title Guar. Co. v. Sterling, 822 = S.W.2d 1,=20 7

(Tex.=20 1991); Emerson Elec. v. Am. Permanent Ware, 201 S.W.3d 301, = 314=20 (Tex. App.=97Dallas 2006, no pet.); AMX = Enters., Inc.=20 v. Bank One, N.A., 196 = S.W.3d 202,=20 206 (Tex. App.=97Houston [1st Dist.] 2006, pet. denied). = Although=20 the traditional =93one satisfaction=94 principle applies to cases = in which an=20 injured plaintiff is wholly compensated by settling defendants or = other=20 third parties, as described in Utts, other Texas Supreme = Court=20 authorities use the term to describe the process by which the = trial court=20 elects the remedy which affords an injured plaintiff the most = favorable=20 relief against a single defendant when multiple theories of = liability=20 cause an indivisible injury. Compare Utts, 81 S.W.3d = at 831;=20 Sterling, 822 S.W.2d at 5 with Birchfield, = 747 S.W.2d=20 at 367 and Chapa, 212 S.W.3d at 303. The = latter rule=20 applies when a defendant commits technically different acts that = result in=20 a single injury. Casteel, 22 S.W.3d at 390; = Emerson,=20 201 S.W.3d at 314. =93When a party tries a = case on=20 alternative theories of recovery and a jury returns favorable = findings on=20 two or more theories, the party has a right to a judgment on the = theory=20 entitling him to the greatest or most favorable relief.=94 = Boyce=20 Iron Works, Inc. v. Sw. Bell Tel. Co., 747 S.W.2d 785, 787 = (Tex.=20 1988); accord Birchfield, 747 S.W.2d at 367 (holding = that=20 injured plaintiffs may not recover punitive damages under the DTPA = and for=20 gross negligence in the absence of separate and distinct actual=20 = damages).
In=20 this case, the jury returned a verdict in favor of Madison on her = claims=20 of negligence, false imprisonment, and assault, and awarded actual = damages=20 as follows:

1. Negligence

Actual Damages =96 = $3,000,000=20

=20 2. False Imprisonment

= =20 Actual Damages =96 $10,000

=20 3. Assault

= =20 Actual Damages =96 $2, 350,000

The = trial court=20 entered a judgment against Williamson awarding Madison $3,000,000 = in=20 actual damages.

At = trial, Madison=20 did not attempt to distinguish between the damages M.M. suffered = as a=20 result of Williamson=92s negligence, false imprisonment, and = assault. =20 Instead, Madison presented evidence of M.M.=92s damages generally, = focusing=20 on the personal injury Williamson=92s conduct had caused M.M., and = the=20 mental anguish that resulted. Madison submitted identical = damage=20 questions after each liability question in the jury charge. =20 According to the evidence Madison presented at trial, M.M. = suffered past=20 and future physical pain, past and future mental anguish, past and = future=20 physical impairment, and loss of future earning capacity as a = result of=20 all of Williamson=92s inappropriate conduct. We hold = the trial=20 court properly concluded that each of the claims resulted in a = single,=20 indivisible injury. See, e.g., Tony Gullo = Motors,=20 212 S.W.3d at 303 (holding that plaintiff=92s injury was = indivisible,=20 requiring an election between damages awarded for breach of = contract,=20 fraud and the DTPA); Household Credit Servs., Inc. v. = Driscol, 989=20 S.W.2d 72, 81=9682 (Tex. App.=97El Paso 1998, pet. denied) = (applying one=20 satisfaction rule and limiting plaintiff=92s recovery for multiple = torts=20 that caused same injury); Berry Prop. Mgmt., Inc. v. = Bliskey, 850=20 S.W.2d 644, 666 (Tex. App.=97Corpus Christi 1993, writ dism=92d by = agr.)=20 (applying one satisfaction rule and limiting plaintiff=92s = recovery for=20 negligence and DTPA claims that resulted in same injury); but = see=20 Beaumont v. Basham, 205 S.W.3d 608, 615 (Tex. App.=97Waco = 2006, pet.=20 denied) (holding that election of remedies rule should not be = applied to=20 plaintiff=92s damage recoveries for invasion of privacy and theft = because=20 injuries were separate and distinct); Baribeau v. = Gustafson, 107=20 S.W.3d 52, 61 (Tex. App.=97San Antonio 2003, pet. denied) (holding = that=20 election of remedies rule should not be applied to plaintiff=92s = damage=20 recoveries for battery and fraud because injuries were separate = and=20 distinct). We hold that the trial court properly applied the = election of remedies rule and limited Madison=92s recovery to the = actual=20 damages awarded for her negligence claim because the negligence = award=20 afforded the greatest recovery. See Chapa, 212 = S.W.3d=20 at 304; Casteel, 22 = S.W.3d at=20 390 (Tex. 2000); Boyce Iron Works, Inc., 747 = S.W.2d=20 at 787; Birchfield, 747 S.W.2d at 367; AMX Enters., = Inc.,=20 196 S.W.3d at 206.=20

C.=20 Exemplary Damages

=20 Madison finally contends that the trial court erred in applying = statutory=20 damages caps to the award of exemplary damages against = Williamson. =20 The jury awarded exemplary damages in the following = amounts:

1. Negligence

Exemplary Damages =96 = $2,500,000=20

=20 2. False Imprisonment

= =20 Exemplary Damages =96 $50,000

=20 3. Assault

= =20 Exemplary Damages =96 $1,000,000

The trial court = applied the=20 statutory exemplary damages caps and entered a judgment awarding = Madison=20 $1,750,000 in exemplary damages. = See Tex. Civ. Prac. = & Rem.=20 Code Ann. =A7 41.008(b) = (Vernon Supp.=20 2006).

=20 Texas Civil Practice and Remedies Code section 41.008 = provides:

(a)=20 In an action in which a claimant seeks recovery of damages, the = trier of=20 fact shall determine the amount of economic damages separately = from the=20 amount of other compensatory damages.

(b) Exemplary damages = awarded=20 against a defendant may not exceed an amount equal to the greater=20 of:

(1)(A) two times the = amount of=20 economic damages; plus (B) an amount equal to any noneconomic = damages found=20 by the jury, not to exceed $750,000; or

(2)=20 $200,000.

(c) This section does not = apply to=20 a cause of action against a defendant from whom a plaintiff seeks = recovery=20 of exemplary damages based on conduct described as a felony in the = following sections of the Penal Code if, except for Sections 49.07 = and=20 49.08, the conduct was committed knowingly or=20 intentionally:

(1)=20 Section 19.02 (murder);

(2)=20 Section 19.03 (capital murder);

(3)=20 Section 20.04 (aggravated kidnapping);

(4)=20 Section 22.02 (aggravated assault);

(5)=20 Section 22.011 (sexual assault);

(6)=20 Section 22.021 (aggravated sexual assault);

(7)=20 Section 22.04 (injury to a child, elderly individual, or disabled=20 individual, but not if the conduct occurred while providing health = care as=20 defined by Section 74.001);

(8)=20 Section 32.21 (forgery);

(9) Section 32.43 = (commercial=20 bribery);

(10)=20 Section 32.45 (misapplication of fiduciary property or property of = financial institution);

(11)=20 Section 32.46 (securing execution of document by = deception);

(12)=20 Section 32.47 (fraudulent destruction, removal, or concealment of=20 writing);

(13)=20 Chapter 31 (theft) the punishment level for which is a felony of = the third=20 degree or higher;

(14)=20 Section 49.07 (intoxication assault); or

(15)=20 Section 49.08 (intoxication manslaughter).

(d) In this section,=20 =93intentionally=94 and =93knowingly=94 have the same meanings = assigned those=20 terms in Sections 6.03(a) and (b), Penal = Code.

(e) The provisions of = this section=20 may not be made known to a jury by any means, including voir dire, = introduction into evidence, argument, or=20 instruction.

(f) This section does not = apply to=20 a cause of action for damages arising from the manufacture of=20 methamphetamine as described by Chapter = 99.

Id.=20 =A7=20 41.008. Before a court will apply the exception to the = statutory=20 damage caps in section 41.008(c), a plaintiff must obtain jury = findings=20 that the defendant violated one of the criminal code provisions = listed in=20 the statute, and that the violation was committed knowingly or=20 intentionally. See Signal Peak = Enters. of=20 Tex., Inc. v. Bettina Invs., Inc., 138 = S.W.3d 915,=20 927 (Tex. App.=97Dallas 2004, pet. stricken) (holding that = exemption from=20 statutory exemplary damage caps requires plaintiff to obtain jury = findings=20 on elements of listed criminal offenses and knowing or intentional = mental=20 state); see also Murphy v. Am. Rice, Inc., No.=20 01-03-01357-CV, 2007 WL 766016, at *21 (Tex. App.=97Houston [1st = Dist.] Mar.=20 9, 2007, no pet.) (mem. op.) (noting that trial court did not = apply=20 statutory damage caps on exemplary damages because jury expressly = found=20 that defendant had engaged in criminal conduct listed in = statute); HCRA=20 of Tex., Inc. v. Johnston, 178 S.W.3d 861, 874 n.13 (Tex. = App.=97Fort=20 Worth 2005, no pet.) (noting that jury=92s malice finding alone = does not=20 trigger exception to statutory damage caps because definition of = malice is=20 different than definition of intentional or knowing conduct under = Texas=20 Penal Code); Mission Res., Inc. v. Garza Energy Trust, 166 = S.W.3d=20 301, 315 (Tex. App.=97Corpus Christi 2005, pet. granted) (holding = that=20 exemption from statutory exemplary damage caps requires plaintiff = to prove=20 defendant=92s criminal conduct beyond a reasonable doubt); = Greenberg=20 Traurig of N.Y., P.C. v. Moody, 161 S.W.3d 56, 68 (Tex. = App.=97Houston=20 [14th Dist.] 2004, no pet.) (noting that trial court did not apply = statutory damage caps on exemplary damages because jury expressly = found=20 that defendant had engaged in criminal conduct). The finding of = fraud,=20 malice, or gross negligence necessary to obtain exemplary damages = is not=20 sufficient to evoke the exception to the statutory damage caps = because the=20 application of the exception under these circumstances would be=20 inconsistent with the statutory scheme of limiting exemplary = damages even=20 when fraud, malice, or gross negligence has been proven by clear = and=20 convincing evidence. See Tex. Civ. Prac. & Rem. = Code=20 Ann. =A7=A7 41.003, 41.008 (Vernon Supp. 2006); = Signal=20 Peak Enters. of Tex., Inc., 138 S.W.3d at=20 927.

=20 Here, Madison did not obtain a jury finding that Williamson = violated any=20 of the criminal code provisions listed in section 41.008(c). = See=20 Tex. Civ.=20 Prac. & Rem. Code Ann. =A7 = 41.008(c);=20 Signal Peak Enters. of Tex., Inc., 138 = S.W.3d=20 at 927. Although the jury found that Williamson acted = with=20 malice, thus entitling Madison to punitive damages, such a finding = alone=20 is insufficient under the Civil Practice and Remedies Code to = remove the=20 caps on exemplary damages because it lacks the required statutory = finding=20 of a knowing or intentional violation of the criminal law. See Signal Peak Enters. of Tex.,=20 Inc., 138 S.W.3d at 927; Johnston, 178 = S.W.3d at 874=20 n.13; see also Tex. Pen.=20 Code Ann. =A7 6.03(a)=96(b) (Vernon 2003) (defining knowing = and=20 intentional conduct). Without a jury finding that Williamson = knowingly or intentionally violated one of the criminal provisions = listed=20 in section 41.008(c), we hold that the trial court properly = applied the=20 statutory damage caps to Madison=92s award of exemplary = damages.=20 See id. =A7 41.008(a)=96(c); Murphy, 2007 WL = 766016, at *21;=20 Johnston, 178 S.W.3d at 874 n.13; Mission Res., = Inc., 166=20 S.W.3d at 315; Moody, 161 S.W.3d at 68; Signal=20 Peak Enters. of Tex., Inc., 138 S.W.3d at = 927. =20

The = actual=20 damages for the negligence claim were broken down as = follows:

1. Negligence

Past and future physical = pain,=20 mental anguish, and physical impairment =96$2,000,000

Future loss of earning = capacity =96=20 $500,000

In calculating = Madison=92s=20 exemplary damages under the damage caps, the trial court = multiplied=20 Madison=92s economic damages[4] by two = ($500,000 x 2=20 =3D $1,000,000), and then added $750,000 in noneconomic damages[5] for a total = of=20 $1,750,000 in exemplary damages.[6] We = hold that=20 the trial court properly calculated Madison=92s exemplary damages = in=20 accordance with section 41.008(b)(1). See Tex. Civ. Prac. & Rem. = Code=20 Ann. =A7 41.008(b)(1).

Conclusion

We hold that the = trial court=20 properly granted summary judgment to Smith, allowed adequate time = for=20 discovery, and that any abuse of discretion in the exclusion of = Madison=92s=20 summary judgment evidence was harmless. We further hold that = Smith=20 had standing to submit a proposed final judgment, and the trial court did not err in the form of = its final=20 judgment. Finally, we hold that the trial court properly = assessed=20 court costs, and properly applied the election of remedies rule = and the=20 statutory damage caps in determining the judgment for actual and = exemplary=20 damages. We therefore affirm the judgment of the trial=20 court.

Jane Bland

&= nbsp; &n= bsp; &nb= sp; &nbs= p; = ; = =20 Justice

Panel consists of = Chief Justice=20 Radack and Justices Alcala and Bland.