K&K Inez Properties, LLC, David Kucera, and Valerie Kucera v. Clay Kolle and Lacy Kolle

Supreme Court of Texas
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No. 24-0045
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K&K Inez Properties, LLC, David Kucera, and Valerie Kucera,
Petitioners,

v.

Clay Kolle and Lacy Kolle,
Respondents

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Thirteenth District of Texas
═══════════════════════════════════════

Argued December 2, 2025

JUSTICE HUDDLE delivered the opinion of the Court.

This nuisance case between neighbors raises a host of questions.
Most importantly, we determine how Civil Practice and Remedies Code
Chapter 41’s exemplary-damages cap applies when a jury apportions
responsibility among multiple defendants and makes separate
exemplary-damages awards to the two plaintiffs who jointly own the
injured property. The trial court’s judgment awarded economic damages
of $425,000 for the property’s diminished value and for loss of use, plus
exemplary damages totaling $900,000. The court of appeals, concluding
the loss-of-use damages were unrecoverable, reduced the economic-
damages award to $175,000 but otherwise affirmed. In this Court,
petitioners contend that the amount of the judgment, though reduced by
the court of appeals, still exceeds Chapter 41’s limits on exemplary
damages.
We agree and hold that (1) Section 41.008, which caps exemplary
damages “awarded against a defendant” at “two times the amount of
economic damages,” requires consideration of the percentage of
economic damages the jury found attributable to that defendant’s
conduct, not the total amount of economic damages awarded against all
defendants; and (2) where, as here, the economic damages are awarded
to the plaintiffs jointly as a single amount, the cap applies to each
defendant based on that single amount of economic damages. We
reverse the court of appeals’ judgment in part and remand to the trial
court to determine the proper allocation of exemplary damages in light
of the appellate court’s reduction of the damages award.
I. Background
Clay and Lacy Kolle live and graze cattle on a 126-acre property
in Victoria County. K&K Inez Properties, a company jointly owned by
David and Valerie Kucera, owns a 50-acre plot of adjoining land on
which the Kuceras also live. When the Kuceras1 began developing a
residential subdivision on their property, they constructed a dam and
berms, which the Kolles allege altered the natural flow of a creek and
caused flooding on the Kolles’ land.

1 Except where necessary to refer to them individually, we will refer to

David Kucera, Valerie Kucera, and K&K jointly as “the Kuceras.”

2
The Kolles sued the Kuceras, alleging violation of the Water
Code2 and multiple common-law claims. The Kuceras timely designated
Victoria County as a responsible third party, alleging that “the water
drainage issues [the Kolles] now complain of, if they exist, are the result
of actions taken or required by Victoria County.” The trial court initially
granted leave to designate the County as a responsible third party, but
it later granted the Kolles’ motion to strike the designation on the
ground that there was no evidence that the County was responsible for
the Kolles’ damages.
At trial, the Kuceras requested that the trial court submit a jury
question asking whether the Kolles’ own negligence caused the damage
to their property and include the Kolles in the proportionate-
responsibility question. The trial court refused. As a result, the liability
questions and the proportionate-responsibility question included only
the three defendants—David Kucera, Valerie Kucera, and K&K.
The jury found for the Kolles on all liability theories, including
that all defendants intentionally and negligently created a private

2 Water Code Section 11.086 provides:

(a) No person may divert or impound the natural flow of surface
waters in this state, or permit a diversion or impounding by
him to continue, in a manner that damages the property of
another by the overflow of the water diverted or impounded.
(b) A person whose property is injured by an overflow of water
caused by an unlawful diversion or impounding has remedies
at law and in equity and may recover damages occasioned by
the overflow.
TEX. WATER CODE § 11.086(a), (b).

3
nuisance.3 The jury also found that Valerie Kucera was part of a
conspiracy that damaged the Kolles. It apportioned responsibility for
causing “the harm to the Kolle Property” as follows:
• David Kucera 40%
• Valerie Kucera 20%
• K&K 40%
As to damages, the jury found the following:
• Decrease in market value of the Kolles’
property $175,000

• Compensation for the Kolles’ loss of the
use of their property in the past $210,000

• Compensation for the Kolles’ loss of the
use of their property in the future until $40,000
it can be repaired, fixed, or restored,
assuming the obstructions that caused
the flooding are removed
Finally, the jury found by clear and convincing evidence that “the
harm to the Kolles” resulted both from David Kucera’s gross negligence
and from gross negligence attributable to K&K. It awarded Clay Kolle
exemplary damages of $250,000 from David and $250,000 from K&K; it
awarded Lacy Kolle $500,000 from David and $250,000 from K&K.4

3 In addition, the jury found that all three defendants violated
Section 11.086 of the Water Code and intentionally caused a trespass on the
Kolles’ property.
4 The jury made additional damages findings that were not incorporated

into the trial court’s judgment.

4
The Kolles elected to recover under their nuisance theory. Based
on the jury’s verdict, the trial court rendered judgment against the
Kuceras as follows:
David Kucera: • Personally liable to the Kolles for
$170,000 in economic damages (40% of
$425,000)
• Liable to Clay Kolle for $200,0005 in
exemplary damages
• Liable to Lacy Kolle for $200,000 in
exemplary damages
K&K: • Personally liable to the Kolles for
$170,000 in economic damages (40% of
$425,000)
• Jointly and severally liable for the
entire $425,000 in economic damages
• Liable to Clay Kolle for $250,000 in
exemplary damages
• Liable to Lacy Kolle for $250,000 in
exemplary damages
Valerie Kucera: • Personally liable to the Kolles for
$85,000 in economic damages (20% of
$425,000)
• Jointly and severally liable for the
entire $425,000 in economic damages6

5 The judgment did not explain why the trial court decreased the jury’s

exemplary-damages awards against David Kucera, but these reductions were
not challenged by the Kolles.
6 The judgment also included a permanent injunction requiring the
Kuceras to remove any obstructions to the natural drainage of water from the
Kolles’ property, including the previously constructed dam and berms. That
injunction has not been challenged on appeal.

5
The Kuceras appealed. The court of appeals reversed the
$250,000 awarded for loss of use ($210,000 for past and $40,000 for
future) because the injury was deemed permanent and thus precluded
recovery for loss of use. 712 S.W.3d 125, 147–48 (Tex. App.—Corpus
Christi–Edinburg 2023) (citing Gilbert Wheeler, Inc. v. Enbridge
Pipelines (E. Tex.), L.P., 449 S.W.3d 474, 478–79, 481 (Tex. 2014)).
Thus, the court of appeals reduced the Kolles’ total economic damages
from $425,000 to $175,000—the amount the jury awarded for
diminution of the property’s market value. The court “affirm[ed] the
judgment in all other respects,” including the exemplary-damages
awards. Id. at 151. The Kuceras filed a petition for review, which we
granted.7
II. Discussion
In this Court, the Kuceras raise four issues:
(1) The trial court erroneously struck the designation of
Victoria County as a responsible third party.
(2) The trial court erred by refusing to submit the Kolles’
negligence and proportionate responsibility.
(3) The judgment violates the one-satisfaction rule.
(4) The judgment misapplies Chapter 41’s caps on exemplary
damages.
We address each issue in turn.
A. Designation of responsible third party
The Kuceras first argue that the trial court abused its discretion
by striking their designation of Victoria County as a responsible third

7The Kolles do not challenge the portion of the court of appeals’
judgment reducing their actual damages from $425,000 to $175,000.

6
party after they timely designated it under Civil Practice and Remedies
Code Section 33.004. The Kuceras alleged that Victoria County’s actions
“affect[ed] the amount of surface water drainage onto the Kolle[s’]
property and the ditch/tributary running through [the Kuceras’]
property. . . . [T]he water drainage issues [the Kolles] now complain of,
if they exist, are the result of actions taken or required by Victoria
County.” The trial court overruled the Kolles’ objection, apparently
determining that the Kuceras pleaded sufficient facts to support
Victoria County’s designation as a responsible third party. See TEX. CIV.
PRAC. & REM. CODE § 33.004(g).
The Kolles later filed a motion to strike the designation under
Section 33.004(l). That provision states:
After adequate time for discovery, a party may move to
strike the designation of a responsible third party on the
ground that there is no evidence that the designated person
is responsible for any portion of the claimant’s alleged
injury or damage. The court shall grant the motion to
strike unless a defendant produces sufficient evidence to
raise a genuine issue of fact regarding the designated
person’s responsibility for the claimant’s injury or damage.
Id. § 33.004(l). In contrast to the “lenient pleading requirements” for
obtaining leave to file the initial designation, In re Gonzales, 619 S.W.3d
259, 264 (Tex. 2021), the filing of a motion to strike the designation
placed the burden on the Kuceras to produce sufficient evidence to raise
a genuine fact issue regarding Victoria County’s responsibility for the
Kolles’ injury. This standard of review has been described as “mirroring
a no-evidence summary judgment.” In re Eagleridge Operating, LLC,
642 S.W.3d 518, 526 (Tex. 2022).

7
The trial court granted the Kolles’ motion and struck the
designation. The Kuceras argue that this was error because
Section 33.004(l) required the court to determine whether there is
evidence that the County was responsible for the Kolles’ injury but the
trial court instead required evidence that the County was liable for the
injury. The Kuceras correctly observe that the fact that a third party
cannot be held liable—for example, because it has a valid defense to
liability—is no basis for striking a responsible-third-party designation.
See In re Mobile Mini, Inc., 596 S.W.3d 781, 787 (Tex. 2020) (citing
Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 868–69
(Tex. 2009)). Relying on this distinction between responsibility and
liability, the Kuceras contend that the trial court erred by requiring
evidence of Victoria County’s negligence, which, they argue, is relevant
only to the County’s liability for the Kolles’ injury, not its responsibility
for the injury.
The Kuceras’ argument turns on the meaning of “responsible” as
used in Section 33.004(l). “As with any statute, our interpretation
begins with the statute’s text.” Third Coast Servs., LLC v. Castaneda,
726 S.W.3d 201, 206 (Tex. 2025); see also Malouf v. State ex rels. Ellis,
694 S.W.3d 712, 718 (Tex. 2024) (“We construe [a statute’s] words in
light of their statutory context, considering the statute as a whole.”).
Chapter 33 does not define “responsible,” but it defines “responsible
third party” as “any person who is alleged to have caused or contributed
to causing in any way the harm for which recovery of damages is sought,
whether by negligent act or omission, by any defective or unreasonably
dangerous product, by other conduct or activity that violates an

8
applicable legal standard, or by any combination of these.” TEX. CIV.
PRAC. & REM. CODE § 33.011(6). The statute similarly defines
“percentage of responsibility” as a person’s attributable percentage of
causing or contributing to cause the harm “whether by negligent act or
omission, by any defective or unreasonably dangerous product, by other
conduct or activity violative of the applicable legal standard, or by any
combination of the foregoing.” Id. § 33.011(4).8
These definitions make clear that “responsible” and
“responsibility” as used in Section 33.004(l) require more than a mere
showing that the designated person caused (or contributed to cause) the
plaintiff’s injury. A designated person is not “responsible” for the
injury—i.e., is not a “responsible third party”—unless he has also
violated some applicable legal standard, including by negligent act or
omission. Absent evidence raising a genuine fact issue whether the
designated person has violated some such standard, there is no evidence
that the designated person is “responsible,” and thus the designation
must be struck. See id. § 33.004(l). Here, although the Kuceras adduced
evidence that the County’s actions may have caused or contributed to
the flooding, they presented no evidence that the County’s actions
violated any applicable standard of care in doing so.
The Kuceras contend they did present evidence of Victoria
County’s negligence. They point to testimony of two witnesses—the
engineer who designed the subdivision on the Kuceras’ property and a

8 The definitions in Section 33.011 apply to all provisions in Chapter 33.

See TEX. CIV. PRAC. & REM. CODE § 33.011 (defining terms as used “[i]n this
chapter”).

9
former Victoria County commissioner—to the effect that the County’s
decision to deepen and widen waterways upstream from the Kolles’
property was “imprudent.” But the Kuceras presented no evidence of
the applicable standard of care. Merely describing the County’s conduct
as “imprudent,” without more, is insufficient to raise a genuine fact issue
as to whether the County violated an applicable standard of care. See
Walgreens v. McKenzie, 713 S.W.3d 394, 402 (Tex. 2025) (concluding
that, to establish a prima facie case of negligence under the TCPA, a
plaintiff must present evidence of, among other things, “the applicable
standard of care” and “how the [defendant’s conduct] fell below that
standard”); Cobb v. Dall. Ft. Wor. Med. Ctr.–Grand Prairie, 48 S.W.3d
820, 825 (Tex. App.—Waco 2001, no pet.) (“In a negligence case, the
applicable standard of care is a threshold issue that the plaintiff must
establish before the factfinder can determine if the defendant deviated
from the standard of care to a degree that constitutes negligence.”). The
trial court did not err by striking the Kuceras’ designation.
B. Comparative negligence
The Kuceras next argue that the trial court erred by refusing
their requests to submit a negligence question as to the Kolles and to
include them in the proportionate-responsibility question. The Kolles
respond that the Kuceras waived this argument when they expressly
abandoned it in the court of appeals. We agree.
Courts “should hesitate to resolve cases based on procedural
defects and instead endeavor to resolve cases on the merits.” Bertucci v.
Watkins, 709 S.W.3d 534, 541–42 (Tex. 2025) (quoting Lion Copolymer
Holdings, LLC v. Lion Polymers, LLC, 614 S.W.3d 729, 732 (Tex. 2020)).

10
We have frequently admonished courts to construe briefs “liberally, but
reasonably, . . . so that the right to appeal is not lost by waiver.” Lion
Copolymer Holdings, 614 S.W.3d at 732 (quoting Horton v. Stovall, 591
S.W.3d 567, 569 (Tex. 2019)). As a result, we frequently reverse when a
court of appeals concludes that an issue has been waived through
inadequate briefing or other procedural defect. See, e.g., Bertucci, 709
S.W.3d at 542–43; Lion Copolymer Holdings, 614 S.W.3d at 733; Horton,
591 S.W.3d at 570–71.
Nevertheless, our preference for reaching the merits is not
animated where, as here, the party urging review previously abandoned
the issue in express, unequivocal terms. The Kuceras’ briefing in the
court of appeals did just that. Their opening brief complained of the trial
court’s error “in refusing to submit the comparative negligence of the
[Kolles] to the jury.” But their reply brief in that court expressly
withdrew the issue:
[The Kuceras’] first issue asserts that the trial court erred
in refusing to submit the comparative negligence of the
[Kolles] to the jury. Without waiving the right to litigate
[the Kolles’] contributory negligence on retrial, [the
Kuceras] are withdrawing Issue 1 for purposes of this
appeal only.
Having expressly and unequivocally stated in the court of appeals
that they were “withdrawing” this issue “for purposes of this appeal,”
the Kuceras cannot resurrect it in this Court. See Fort Bend Cnty.
Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 395 (Tex. 1991) (“Since
Sbrusch abandoned the argument that the District owed him a duty as
the owner or occupier of the bridge, we cannot consider it.”); see also

11
Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 643 (Tex. 1996) (“A
party’s express renunciation of a known right can establish waiver.”).
C. One-satisfaction rule
The Kuceras contend that the trial court’s judgment awarded the
Kolles a double recovery for the same injury in violation of the
one-satisfaction rule. “Under the one satisfaction rule, a plaintiff is
entitled to only one recovery for any damages suffered.” Sky View at Las
Palmas, LLC v. Mendez, 555 S.W.3d 101, 106 (Tex. 2018) (quoting
Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 390 (Tex. 2000)); see also
Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 7 (Tex. 1991) (“The
one satisfaction rule applies to prevent a plaintiff from obtaining more
than one recovery for the same injury.”).
Here, the jury found the Kuceras liable to the Kolles under
multiple theories: violation of the Water Code, intentionally creating a
private nuisance, negligently creating a private nuisance, and trespass.
But the jury was not asked to make separate damages awards under
each liability theory. Instead, the jury was asked about each element of
damages only once. For example, the jury determined the difference in
the market value of the Kolles’ property before and after the Kuceras’
conduct only once, in response to a typical damages question that was
predicated on a “yes” answer to any of the liability questions. In other
words, the jury did not repeatedly award damages for the same injury
under different liability theories. Nor did the trial court.
The Kuceras nevertheless contend that the judgment imposes
liability for damages based on two distinct theories of liability—
negligently causing a nuisance and intentionally causing a nuisance.

12
The jury found that Valerie Kucera conspired with David and K&K,
which was predicated on a finding that David or K&K intentionally
created a nuisance. Based on that conspiracy finding, the trial court’s
judgment made Valerie jointly and severally liable for all the Kolles’
damages. The jury also found that David and K&K were grossly
negligent, for which the trial court awarded exemplary damages.
According to the Kuceras, an award of exemplary damages predicated
on a gross-negligence finding necessarily requires that the nuisance was
created negligently, and they contend that is at odds with a finding of
intentional nuisance. In other words, the Kuceras contend negligent
nuisance and intentional nuisance are mutually exclusive theories and
the trial court improperly intertwined those theories in awarding
damages.
We disagree. The Kuceras cite Reed Tool Co. v. Copelin, which
held that an injury caused by gross negligence did not fall within the
Workers’ Compensation Act’s exception for intentional injury. 689
S.W.2d 404, 406 (Tex. 1985) (citing Castleberry v. Goolsby Bldg. Corp.,
617 S.W.2d 665, 666 (Tex. 1981)). But that decision predates
Chapter 41’s current definition of “gross negligence.” See TEX. CIV.
PRAC. & REM. CODE § 41.001(11). The statute defines “gross negligence”
to include any “act or omission” that objectively involves an extreme
degree of risk and the actor proceeds with conscious indifference to
others’ rights, safety, or welfare despite actual, subjective awareness of
that risk. Id. Nothing in that definition suggests that the conduct found
by the jury could not support findings of both the intentional creation of

13
a nuisance and gross negligence.9 We reject the Kuceras’ argument that
the judgment violates the one-satisfaction rule.
D. Exemplary damages
Finally, the Kuceras argue that the court of appeals erred by
affirming the award of exemplary damages. They present three main
arguments: (1) the statutory cap on exemplary damages must be applied
against a damages award after it has been reduced to account for the
defendant’s proportionate responsibility; (2) the cap applies on a
per-defendant basis rather than separately to each exemplary-damages
award made to each plaintiff; and (3) the court of appeals erred by not
evaluating whether the exemplary-damages awards were
unconstitutionally excessive after it reduced the amount of actual
damages. We address these arguments in turn.
The parties present competing interpretations regarding several
aspects of the exemplary-damages cap in Civil Practice and Remedies
Code Section 41.008(b). Again, “our interpretation begins with the
statute’s text,” Third Coast Servs., 726 S.W.3d at 206, and we “presume
the Legislature chooses a statute’s language with care, including each
word chosen for a purpose, while purposefully omitting words not
chosen,” id. (quoting Rogers v. Bagley, 623 S.W.3d 343, 352 (Tex. 2021)).

9 Moreover, the Kuceras did not object to the instruction that predicated

the jury’s gross-negligence finding on an affirmative answer to the intentional-
nuisance question. See Lesikar v. Rappeport, 33 S.W.3d 282, 308 (Tex. App.—
Texarkana 2000, pet. denied) (holding that the defendants did not preserve a
complaint that the judgment impermissibly awarded damages under the
wrong liability theories when they failed to object that the charge predicated
those damages on affirmative answers to those liability questions).

14
To place the statutory cap in proper context, see Malouf, 694
S.W.3d at 718, we examine the relevant portions of Chapter 41,
beginning with Section 41.002, which establishes Chapter 41’s scope:
(a) This chapter applies to any action in which a claimant
seeks damages relating to a cause of action.
(b) This chapter establishes the maximum damages that
may be awarded in an action subject to this chapter,
including an action for which damages are awarded
under another law of this state. This chapter does not
apply to the extent another law establishes a lower
maximum amount of damages for a particular claim.
TEX. CIV. PRAC. & REM. CODE § 41.002(a), (b). Chapter 41 defines
“claimant”:
“Claimant” means a party, including a plaintiff,
counterclaimant, cross-claimant, or third-party plaintiff,
seeking recovery of damages. In a cause of action in which
a party seeks recovery of damages related to injury to
another person, damage to the property of another person,
death of another person, or other harm to another person,
“claimant” includes both that other person and the party
seeking recovery of damages.
Id. § 41.001(1). Section 41.006 provides that, in cases involving multiple
defendants, “an award of exemplary damages must be specific as to a
defendant, and each defendant is liable only for the amount of the award
made against that defendant.” Id. § 41.006.
The cap at issue here is set forth in Section 41.008(b).10
Subsections (a) and (b) state:

10 The parties agree that Section 41.008(b) applies and that none of the

exceptions set forth in Section 41.008 are at issue here. See TEX. CIV. PRAC. &
REM. CODE § 41.008(c), (f).

15
(a) In an action in which a claimant seeks recovery of
damages, the trier of fact shall determine the amount
of economic damages separately from the amount of
other compensatory damages.
(b) Exemplary damages awarded against a defendant may
not exceed an amount equal to the greater of:
(1) (A) two times the amount of economic damages;
plus
(B) an amount equal to any noneconomic damages
found by the jury, not to exceed $750,000; or
(2) $200,000.
Id. § 41.008(a), (b).
Because there are no noneconomic damages here, the parties
agree that the amount described in Section 41.008(b)(1)(B) is zero.
Nevertheless, they sharply disagree about how the rest of
Section 41.008(b) applies.
1. Does the amount described in Section 41.008(b)(1)(A)
take into account the percentage of responsibility
attributed to a defendant?
The first dispute concerns what constitutes “the amount of
economic damages” in Section 41.008(b)(1)(A). The Kuceras argue that
when responsibility is allocated to more than one defendant, “the
amount of economic damages” referenced in Section 41.008(b)(1)(A) is
the product of the damages award multiplied by the percentage of
responsibility apportioned to the defendant. For example, because the
Kolles were awarded (after the court of appeals’ reduction) $175,000 in
economic damages and the jury found David Kucera 40% responsible for
those damages, the Kuceras contend that, with respect to David, “the
amount of economic damages” referenced in Section 41.008(b)(1)(A) is

16
$70,000 ($175,000 x 40%). Under this theory, two times that amount
($140,000) is less than $200,000, so the statute caps David’s liability for
exemplary damages at $200,000.
The Kolles counter that “the amount of economic damages” in
Section 41.008(b)(1)(A) refers to the total economic-damages award
($175,000) without any reduction based on the percentage of
responsibility attributed to David. Thus, according to the Kolles, the
statute caps David’s liability for exemplary damages at $350,000
($175,000 x 2).
The Kuceras rely primarily on Horizon Health Corp. v. Acadia
Healthcare Co., 520 S.W.3d 848 (Tex. 2017). That case concerned a
challenge that the exemplary-damages award was unconstitutional. We
noted that the “guideposts” against which courts measure whether an
award is unconstitutionally excessive include “the degree of
reprehensibility of the defendant’s misconduct” and “the disparity
between the actual or potential harm suffered by the plaintiff and the
punitive damages award.” Id. at 873 (quoting State Farm Mut. Auto.
Ins. Co. v. Campbell, 538 U.S. 408, 418 (2003)). We thus held that the
trial court must compare the exemplary-damages award to the amount
of compensatory damages for which that defendant was found
responsible, not the aggregate amount of damages awarded to the
plaintiff, as “this approach most closely matches the punishment to each
defendant’s misconduct.” Id. at 879.
Likewise, here, we conclude that “the amount of economic
damages” for calculating the statutory cap requires consideration of only
those damages for which that defendant is responsible. Section 41.008

17
provides that it is a cap on “[e]xemplary damages awarded against a
defendant.” TEX. CIV. PRAC. & REM. CODE § 41.008(b) (emphasis added).
Section 41.006 states that the award of exemplary damages “must be
specific as to a defendant.” Id. § 41.006. And Section 41.011 expressly
requires juries to consider evidence relating to “the degree of culpability
of the wrongdoer” when determining the amount of exemplary damages.
Id. § 41.011(a)(3). Calculating the cap based on all economic damages
awarded against all defendants, as the Kolles urge, would contradict the
Legislature’s clear instructions that exemplary damages are specific to
a defendant and must be tied to that defendant’s degree of culpability.
In addition to being more faithful to the statutory text, this reading
avoids situations in which a defendant to whom the jury assigns only a
small percentage of responsibility is subjected to a significantly higher
cap based on the conduct of other defendants, opening the award to a
constitutional challenge. See Horizon Health, 520 S.W.3d at 879. The
Kolles’ proposed reading, by contrast, would run counter to our duty to
interpret statutes “in a manner that avoids constitutional infirmity.”
Paxton v. Annunciation House, Inc., 719 S.W.3d 555, 578 (Tex. 2025)
(quoting Quick v. City of Austin, 7 S.W.3d 109, 115 (Tex. 1998)).
Accordingly, we hold that the statute caps an individual defendant’s
liability for exemplary damages by comparing the exemplary-damages
award to the amount of economic damages attributable to that
defendant, based on the defendant’s percentage of responsibility.
2. Does the cap apply separately to each claimant’s award
of exemplary damages?
The next dispute concerns whether the statutory cap applies
separately to each claimant’s exemplary-damages award. The Kuceras

18
contend that the court of appeals erred by applying the cap to each
exemplary-damages award against David Kucera—i.e., it applied the
cap to the $250,000 awarded to Clay Kolle and separately to the
$500,000 awarded to Lacy Kolle—rather than applying the cap once, to
the total amount of exemplary damages for which the jury found David
liable to the Kolles: $750,000. They argue that David cannot be required
to pay more than $200,000 (or two times the amount of economic
damages) in total, regardless of the number of plaintiffs. The Kuceras
make the same argument as to the exemplary-damages awards against
K&K.
The Kolles respond that Section 41.008 as a whole applies with
respect to each claimant. They rely primarily on Section 41.008(a),
which they contend expresses the Legislature’s intent that
Section 41.008 apply on a claimant-by-claimant basis because it
describes “an action in which a claimant seeks recovery of damages.”
TEX. CIV. PRAC. & REM. CODE § 41.008(a).
The Kuceras do not directly refute this but argue instead that
Clay and Lacy Kolle should be treated as a single “claimant” because
they are co-owners of the damaged property. They point to Chapter 41’s
definition of “claimant,” which states that, in cases involving “damage
to the property of another person,” “claimant” includes “both that other
person and the party seeking recovery of damages.” Id. § 41.001(1). The
Kolles reply that Clay and Lacy jointly own the property, so neither is
seeking damages for “property of another person”—they each seek
damages for their own ownership interest.

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Here, although the jury made separate exemplary-damages
awards to Clay and Lacy Kolle, the jury made a single award of economic
damages for the injury to their jointly owned property. As reduced by
the court of appeals, that amount is $175,000. Because there is only one
“amount of economic damages,” the cap on exemplary damages awarded
against each defendant must be based on that amount.11
The jury apportioned 40% of the responsibility for the damages to
David Kucera and 40% to K&K, so “the amount of economic damages”
for purposes of calculating each defendant’s cap is $70,000 (40% of
$175,000). Two times $70,000 is $140,000, which is less than $200,000,
so Section 41.008(b) caps the exemplary damages that may be awarded
against David Kucera and K&K at $200,000 each. Because the trial
court’s judgment awards more—it orders David to pay $400,000
($200,000 to Clay Kolle and $200,000 to Lacy Kolle) and K&K to pay
$500,000 ($250,000 to each)—the court of appeals erred in affirming the
portion of the trial court’s judgment awarding these amounts. We
therefore reverse that portion of the judgment.
3. After reducing the economic-damages award, should
the court of appeals evaluate whether the
exemplary-damages awards are unconstitutionally
excessive?
Finally, the Kuceras argue that the court of appeals erred by not
remanding for the trial court to reconsider whether the
exemplary-damages awards were unconstitutionally excessive in light

11 We reserve for another day the question of whether separate awards

of economic damages made to claimants seeking recovery for separate injuries
should be combined for purposes of calculating the exemplary-damages cap as
to a single defendant.

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of the reduction in the actual damages. The Kuceras asserted in their
motion for new trial and in the court of appeals that the exemplary
damages were unconstitutionally excessive. The Kolles argue that the
Kuceras forfeited that complaint through inadequate briefing. We need
not determine whether the issue was waived in the court of appeals
because where, as here, the court of appeals reduces the amount of
actual damages, whether the exemplary damages are excessive in
relation to the reduced actual damages is a claim that arises from the
court of appeals’ judgment and thus may be asserted for the first time
in this Court. Bunton v. Bentley, 153 S.W.3d 50, 53 (Tex. 2004). When
it reduced the actual damages awarded, the court of appeals should have
reevaluated the exemplary damages or directed the trial court to do so
on remand. See id. at 54.
The court of appeals generally will be able to make that
determination itself. But a wrinkle in this case leads us to conclude the
better course is to direct the trial court to consider whether the
exemplary-damages awards are unconstitutionally excessive. As we
hold above, Section 41.008(b) limits the total amount of exemplary
damages that may be awarded per defendant, but the jury made
separate (and different) awards to each plaintiff. We believe the trial
court is in the best position to determine how to allocate the capped
exemplary-damages awards ($200,000 as to each of David Kucera and
K&K) between the Kolles. The trial court may then proceed to consider
anew any potential challenge to those awards as unconstitutionally
excessive.

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III. Conclusion
We affirm the court of appeals’ judgment except as to the award
of exemplary damages. The court of appeals erred in affirming the
exemplary-damages awards because they exceeded Section 41.008(b)’s
limits. Based on that court’s reduction in the amount of economic
damages, Section 41.008(b) caps the amount of exemplary damages
against David Kucera and K&K at $200,000 each. The court of appeals
also erred by failing to reevaluate the exemplary damages for
unconstitutional excessiveness after it reduced the actual damages.
Accordingly, we reverse the portion of the court of appeals’ judgment
affirming the exemplary-damages awards and remand the case to the
trial court with instructions to (1) allocate as between the Kolles the
exemplary-damages awards, which must not exceed $200,000 each as to
David and K&K; and (2) consider, if urged by the Kuceras, any further
challenge to those awards as unconstitutionally excessive based on the
reduction in actual damages.

Rebeca A. Huddle
Justice

OPINION DELIVERED: May 22, 2026

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