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Click here for the full text of this decision FACTS:In her sexual harassment suit against her former employer, Robin Sisco alleged that Curtis Schrock committed the torts of assault and intentional infliction of emotional distress. Schrock objected to the inclusion of intentional infliction of emotional distress as a theory of recovery in the court’s charge on several grounds. The trial court overruled Schrock’s objections and submitted liability and damages questions on both theories. The jury found that Schrock committed both torts and awarded Sisco compensatory damages of $40,000 for intentional infliction of emotional distress and $25,000 on the assault cause of action. In addition to submitting both theories of recovery in the court’s charge, the trial court also submitted a single exemplary damages question. The trial court conditionally submitted the exemplary damages question on an affirmative finding to either the assault or the intentional infliction of emotional distress causes of action. The jury assessed exemplary damages of $50,000 against Schrock. On appeal, Schrock subsequently challenged the submission of intentional infliction of emotional distress in a motion for judgment notwithstanding the verdict and a motion for new trial. He asserted that the alleged error probably caused the rendition of an improper judgment in the form of an inflated award of exemplary damages. Sisco responded to Schrock’s postverdict motions by offering to remit the $40,000 in compensatory damages that the jury awarded to her for intentional infliction of emotional distress. The trial court accepted Sisco’s voluntary remittitur and removed the $40,000 recovery from the judgment. However, the jury’s full award of exemplary damages remained intact, so Schrock’s appeal went forward. HOLDING:Reversed and remanded. Texas Rule of Civil Procedure 278 requires the submission of jury questions that are supported by the written pleadings and the evidence. The court stated, however, that even if a trial court abuses its discretion when it submits an improper instruction to the jury, it would not reverse the judgment in the absence of harm. Harm, the court stated, occurs when the error in the charge probably caused the rendition of an improper judgment or prevented an appellant from properly presenting the case to the court of appeals. In her written motion for remittitur, Sisco conceded that the trial court’s inclusion of the intentional infliction of emotional distress instruction was an error. So the court proceeded to harm analysis. The court noted that the exemplary damages question asked the jury to determine damages for both the assault and alleged intentional infliction of emotional distress causes of action. Thus, because the jury made affirmative findings on both the assault and intentional infliction of emotional distress causes of action, the court could not determine whether it based its award of exemplary damages in whole or in part upon the alleged conduct that constituted the intentional infliction of emotional distress. Under the 2002 Texas Supreme Court opinion Crown Life Insurance Co. v. Casteel, the court stated, when a single broad-form liability question commingles valid and invalid liability grounds, and the appellant’s objection is timely and specific, the error is harmful and a new trial is required when the appellate court cannot determine whether the jury based its verdict on an invalid theory. Schrock sufficiently preserved error to invoke the harm analysis employed in Casteel, the court held. OPINION:McCall, J.; Wright, C.J., McCall and Strange, J.J.

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