(Cite as: 1997 WL 152645 (Tex.App.-Hous. (14 Dist.)))
NOTICE: NOT DESIGNATED FOR PUBLICATION. UNDER TEX.R.APP.P. 47.7 UNPUBLISHED OPINIONS MAY NOT BE CITED AS AUTHORITY.
Court of Appeals of Texas, Houston (14th Dist.).
THE SUCCESS GROUP, INC. and Ron Nordquist, Appellants,
STATE FARM LLOYDS, State Farm Fire and Casualty Company and Don Vinklarek,
April 3, 1997.
On Appeal from the 133rd District Court Harris County, Texas Trial Court Cause No. 91-16744.
Panel consists of Justices YATES, HUDSON and O’NEILL.
*1 This appeal results from a take-nothing judgment entered in appellants’ suit alleging bad faith denial of insurance coverage and DTPA and Insurance Code violations. The jury found that appellant, Ron Nordquist, president and majority shareholder of The Success Group, Inc., appellant, intentionally set, or caused to be set, the fire that formed the basis of appellants’ insurance claims against appellees, State Farm Lloyds, State Farm Fire and Casualty Company, and Don Vinklarek, the State Farm agent who sold the policies to appellants. Because appellants’ bad faith claims were predicated on a negative answer to the arson question, the jury did not reach any other questions, and the trial court entered judgment for appellees. [FN1] Appellants raise eleven points of error contending the evidence is legally and factually insufficient to support the jury’s finding of arson and that the trial court erred in (1) refusing to permit the jury to view the scene and to observe burn experiments; (2) failing to instruct the jury not to base its decision solely on the number of witnesses called by a party; (3) requiring the parties to reimburse a juror for travel expenses; and (4) failing to consider juror testimony in connection with appellants’ motion for new trial. We affirm.
On October 16, 1990, a fire occurred at a commercial building at 5322 Elm Street in Houston where The Success Group, Inc. operated an audio-visual, graphics arts and photographic image reproduction business. Ron Nordquist owned the building and was the named insured on the insurance policy covering the structure. The policy was issued by State Farm Lloyds. The Success Group, Inc. owned the contents of the building, which were insured under a separate policy issued to the corporation by State Farm Lloyds.
The arson division of the Houston Fire Department (“HFD”) investigated the fire and reported to State Farm its investigators’ opinions that the fire was incendiary, or had been intentionally set. State Farm retained fire, forensic chemistry, and electrical engineering investigators who also determined that the fire was not accidental. Based on the results of this investigation, State Farm concluded the fire was “incendiary in origin, not accidental, and that Ronald B. Nordquist intentionally or at his direction was responsible for the setting of the fire,” and denied coverage under both policies.
Appellants contested the denial of their insurance claims by filing this suit. They contended State Farm breached its insurance contracts, denied their claims in bad faith, and violated both the DTPA and Insurance Code. They also alleged Vinklarek, the agent, caused the contents to be underinsured at the time of the loss. At the conclusion of the trial, the jury found Nordquist was responsible for the fire, and the trial court entered judgment for appellees. Appellants’ motions for JNOV and for a new trial were overruled.
Appellants rested their case subject to a request that the jurors be transported to the burned premises to observe the residue from the 1990 fire. The trial court’s denial of their request for a jury view is the subject of appellants’ first point of error.
*2 To preserve error in the trial court’s exclusion of evidence, the proponent of the evidence must make an offer of proof. Tex.R.App. P. 52(b). While appellants contend there were numerous discussions at trial about the jury view, they failed to make a record for this court of what specific evidence would be revealed by the jury’s observation of the burned building, and why that evidence should have been permitted. Appellants merely argued that a jury view was “appropriate” because three witnesses testified, according to appellants, that they could not determine the origin and cause of the fire from, or were confused by, photographs of the fire scene. In addition, they claim that evidence was disputed as to whether the floor tiles had blistered or bubbled, whether low pipes had relaxed due to heat, and whether there was any fire in the art room. The blistered tiles and relaxed pipes were listed among several suspicious burn patterns in State Farm’s report recommending denial of coverage, but appellants failed to explain this fact when requesting a jury view. Apparently, appellants’ contention was that the absence of these conditions would negate appellees’ accelerant theory, although the relevance of these factors is not clearly expressed in the record. [FN2] Because appellants have not preserved their complaint for our review, point of error one is overruled.
FN2. Appellants may have believed that the purpose of the jury view was readily apparent to demonstrate their theory of the fire through the burn patterns at the scene. From the record presented to this court, however, it is difficult to understand many of appellants’ contentions about the nature of the fire, and consequently, the purpose of the jury view. Frequently, appellants’ counsel referred to photographs shown the jury during trial without referring to the exhibit numbers. The state of the record considerably hampered this court’s review of appellants’ points of error. It is appellants’ burden to present a sufficient record to show error requiring reversal. Tex.R.App. P. 50(d).
In their second point of error, appellants contend the trial court erred in refusing to permit them to conduct burn experiments, either at the fire scene, in the courtroom, or on the courthouse steps. At the close of evidence, appellants sought to conduct burn experiments on various items allegedly removed from the site, including tile, insulation, and carpet samples, apparently in an attempt to show whether the items would burn and, if so, how they burned. Appellants failed to advise the trial court what evidence would be revealed by the jury’s observation of these burn experiments. See Tex.R.App. P. 52(b). The only reference to the relevance of these tests is a vague statement by counsel that Nordquist would not have purchased naphtha, an accelerant found at the site, when there were other flammable materials present.
Appellants also failed to establish the proper predicate for these tests. There must be “substantial similarity” between the conditions existing at the time of the experiment and those existing at the time of the incident. Mottu v. Navistar Internat’l Transp. Corp., 804 S.W.2d 144, 148 (Tex.App.– Houston [14th Dist.] 1990, writ denied). Appellants failed to lay any predicate as to the similarity of conditions. Accordingly, we overrule point of error two.
In their third point of error, appellants contend the trial court erred in refusing to submit the following requested jury instruction:
You should not reach a decision on any dispute [sic] matter based solely on the number of witnesses on one side or the other testifying as to the matter.
*3 Rule 277 gives the trial court broad discretion in deciding what instructions are proper to submit to the jury. Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 255 (Tex.1974). The trial court has considerably more discretion in submitting instructions and definitions than it has in submitting questions. M.N. Dannenbaum, Inc. v. Brummerhop, 840 S.W.2d 624, 631 (Tex.App.–Houston [14th Dist.] 1992, writ denied). When the court refuses to submit a requested instruction, the question on review is whether the request was reasonably necessary to enable the jury to render a proper verdict. Tex.R. Civ. P. 277; Johnson v. Whitehurst, 652 S.W.2d 441, 447-48 (Tex.App.–Houston [1st Dist.] 1983, writ ref’d n.r.e.).
The general instructions given by the trial court in this case were those approved by the Texas Supreme Court. See Tex.R. Civ. P. 226a, III. Appellants cite no authority supporting submission of their requested instruction. The cases cited instead hold that an appellate court should not conduct a factual sufficiency review of the evidence solely on a “quantitative analysis” of the proof. See City of Lubbock v. Thiel, 352 S.W.2d 799 (Tex.Civ.App.–Amarillo 1961, writ ref’d n.r.e.); Adams v. State Board of Ins., 319 S.W.2d 750 (Tex.Civ.App.–Houston 1958, writ ref’d n.r.e.).
The party complaining of the failure to include an instruction in the charge must tender a substantially correct instruction or the error is waived. Plainsman Trading Co. v. Crews, 898 S.W.2d 786, 791 (Tex. 1995); Tex.R. Civ. P. 278. Appellants’ requested instruction improperly characterized the witnesses as being “on one side or the other,” rather than as testifying about a disputed fact. Appellants called thirty-two of the forty witnesses who testified at trial. Most of these witnesses did not offer facts and opinions favorable to appellants’ theory of the case. Thus, many of the witnesses were called by appellants’ “side,” but testified adversely.
Because appellants’ trial strategy caused them to call most of the witnesses, appellants have not shown that the instruction was reasonably necessary to enable the jurors to render a proper verdict or that they were harmed by the trial court’s failure to include their requested instruction. Therefore, we overrule point of error three.
Points of error seven and eight allege the trial court erred in requiring the parties to reimburse a juror for travel expenses incurred when family vacation plans were delayed. Each side anonymously contributed $75 to an unnamed juror apparently for increased air fare incurred when the trial lasted longer than expected and a juror had to reschedule travel plans.
The only reference to these events is appellants’ complaint in their motion for new trial. Appellants acknowledge they were requested, not ordered, to make the payment and do not recite that they objected to the payment at the time. Appellants also cite to their motion for mistrial based on the time constraints caused by the impending holiday and previous vacation plans. No mention was made of the juror payment at that time, however. We conclude that these objections were not timely. To preserve error, appellants should have specifically objected on the record at the time of the payment. Tex.R.App. P. 52(a). Appellants have waived any error in the juror payment. We overrule appellants’ points of error seven and eight.
*4 In point of error nine, appellants complain that the trial court erred in refusing to consider testimony from jurors at the hearing on their motion for new trial. The trial court disregarded an affidavit from a juror attached to appellants’ motion and refused to allow appellants to present live juror testimony at the hearing.
The Texas Rules of Civil Procedure prohibit jurors testifying about their deliberations unless a charge of outside influence is alleged. Rule 327(b) provides as follows:
A juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict concerning his mental processes in connection therewith, except that a juror may testify whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.
Tex.R. Civ. P. 327(b); see also Tex.R. Civ. Evid. 606(b). These rules prohibit jurors from testifying about matters occurring or statements made during deliberations unless an “outside influence” affected the deliberations. Robinson Elec. Supply Co. v. Cadillac Cable Corp., 706 S.W.2d 130, 132 (Tex.App.–Houston [14th Dist.] 1986, writ ref’d n.r.e.). The rules are designed to insulate the deliberative process from scrutiny so as to promote free discussion and reduce juror harassment. Soliz v. Saenz, 779 S.W.2d 929, 935 (Tex.App.–Corpus Christi 1989, writ denied). The courts of this state have defined an “outside influence” as one that emanates from a source outside the jury room. Moon v. Firestone Tire & Rubber Co., 742 S.W.2d 792, 793 (Tex.App.–Houston [14th Dist.] 1987, writ denied) (citing Weaver v. Westchester Fire Ins. Co., 739 S.W.2d 23, 24 (Tex.1987)).
Appellants made no claim of jury misconduct based on an outside influence. Instead, they submitted a juror’s affidavit which recited her understanding of the evidence and her opinion that a view of the scene establishing appellants’ theory that the floor tiles had not blistered and a demonstration that the films in the building were flammable would have caused her vote to change. Presumably the live testimony sought to be offered was of the same nature. In addition, one juror was to testify that the jurors’ votes changed late in the day on Friday before the holiday weekend.
The testimony appellants sought to have the court consider is precisely the type of inquiry into the jurors’ deliberative processes that is prohibited by the rules of procedure and evidence. Absent a claim of outside influence, the trial court properly refused to permit live or affidavit juror testimony. We overrule appellants’ ninth point of error.
Sufficiency of the Evidence
*5 In appellants’ points of error four, five, six, ten and eleven, they contest the legal and factual sufficiency of the evidence supporting the jury’s finding that Nordquist set the fire or caused it to be set. [FN3] Specifically, they contend there is legally or factually insufficient evidence of Nordquist’s motive or of his connection to the fire.
FN3. Nordquist stipulated at trial that his acts were, as a matter of law, imputed to The Success Group.
Appellees had the burden of proof on Jury Question No. 1, whether Nordquist set the fire or caused it to be set. Accordingly, appellants’ legal sufficiency challenge is a “no evidence” challenge and we review only the evidence and inferences tending to support the verdict, disregarding all evidence and inferences to the contrary. Transport Ins. Co. v. Faircloth, 898 S.W.2d 269, 275 (Tex.1995). In reviewing appellants’ challenges to the factual sufficiency of the evidence, we review all the evidence, both supporting and contrary to the verdict. Plas-Tex, Inc. v. United States Steel Corp., 772 S.W.2d 442, 445 (Tex.1989); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986). We will set aside the verdict only if the evidence is so weak as to render the verdict clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam).
To establish arson as a defense to a civil suit for insurance proceeds, the insurer must prove by a preponderance of the evidence that the insured set the fire or caused it to be set. State Farm Lloyds, Inc. v. Polasek, 847 S.W.2d 279, 282 (Tex.App.–San Antonio 1992, writ denied). Because arson is usually planned and committed in secrecy to avoid detection, these elements may be proved by circumstantial evidence. Id.; Garrett v. Standard Fire Ins. Co., 541 S.W.2d 635, 638 (Tex.Civ.App.–Beaumont 1976, writ ref’d n.r.e.). Circumstantial evidence that the insured committed arson consists of evidence of an incendiary fire together with evidence connecting the insured to the crime, which is typically supplied by proof of motive and opportunity. Polasek, 847 S.W.2d at 282. The insured’s burden is not to prove with absolute certainty that the fire was set intentionally, but only to prove that the circumstances point to arson with such a degree of certainty as to make the conclusion reasonably probable. Bufkin v. Texas Farm Bureau Mut. Ins. Co., 658 S.W.2d 317, 320 (Tex.App.–Tyler 1983, no writ).
First, appellees presented evidence that the fire was an incendiary or accelerated fire, based on findings of multiple points of ignition demonstrated by unexplained areas of low burning, and the presence of an accelerant in some of the fire debris. Appellees also furnished evidence to contradict appellants’ theory that the fire was caused when a portion of the plywood wall in the “Green Forox room” spontaneously combusted because it had been exposed for many years to high temperatures generated by a light bulb affixed to the Green Forox camera.
*6 According to six of the seven fire experts, including four HFD officials, the fire was intentionally set. Both HFD and the Bureau of Alcohol, Tobacco and Firearms (ATF), called the fire incendiary in origin. The experts who determined the fire was arson all had extensive experience, and appellants did not challenge their qualifications. Chief of HFD’s Arson Division, Roy Paul, gave his opinion that there was no possibility the fire was accidental. Chief Paul testified there were “definitely” two separate areas of abnormal, intense, low burn damage, which indicated to him that the fire had been intentionally set and that a flammable liquid had been used to accelerate the fire. The arson chief explained “[t]he possibility of having two separate fires in the same building [at] exactly the same time is so remote, that it’s prima facie evidence that if you have two distinct fires, that someone started the fire.” He considered the unusual burn patterns to be a “hallmark” of an incendiary fire. Chief Paul pointed out the burn patterns in a photograph depicting two points of origin and stated that “a fire with a wide base of origin here which is consistent generally with almost only flammable liquids. That’s all it can be.” He also indicated there may have been a third separate point of origin in Vicki Nordquisal, office.
The first HFD arson investigator at the scene, Herman Atchison, testified he was called to the scene the night of the fire because the fire suppression team suspected arson. He learned from the fire fighters that the building was locked when they arrived and the fire was a fast-burning fire. Atchison also found unexplained low burn patterns, and concluded the fire had been set. He explained that in conducting his fire investigation, he first looks for an accidental cause of a fire and does not classify a fire as incendiary unless he can find no reason for the fire to have occurred in that location. Atchison testified he found no accidental cause of the fire.
The first suppression officer at the scene, HFD Junior Chief Gary Taylor, testified that the suppression team found the building “heavily charged with smoke,” which meant the fire inside was “very intense.” Taylor also believed the fire was intentionally set because he saw multiple points of origin and low burn patterns suggesting the use of flammable liquids. The time frame of events also made Taylor suspicious because the owner’s daughter had left the building only about 30 minutes before the fire was detected. This fact, together with the evidence at the scene, demonstrated that “[i]t was a very intense fire in a short period of time….”
Appellants introduced deposition testimony from Leonard Mikeska, who worked for Introspect, the company State Farm hired to investigate the fire. Mikeska videotaped the damaged structure and collected twelve samples of fire debris for testing by a forensic chemist. Mikeska testified he observed three possible points of fire origin, two in the hallway and one in Vicki Nordquist’s office. In his opinion, the fire was incendiary and an accelerant had been used.
*7 Doug Holmes, Introspect’s owner, testified that he and his crew members spent an estimated 100 hours “digging out” the fire. With the aid of some of the hundreds of photos his crew took, Holmes explained where he found low burn patterns and evidence of multiple points of fire origin. He found no burn damage in the Green Forox room consistent with appellants’ theory that a camera lamp had started the fire. He considered it “ridiculous” to conclude the fire started when the wall spontaneously ignited from heat from a 500-watt bulb.
Five of the samples taken from the fire debris showed a relatively high concentration of naphtha, a petroleum distillate commonly found in camp stove fuels and paint and lacquer solvents. The positive samples were removed from different areas of the building, specifically from different parts of the hall floor, carpeting and baseplate, and from carpet and padding in Vicki Nordquist’s office and the reception area. Appellees’ forensic chemist, Dr. Andrew Armstrong, distinguished the type of naphtha found at the scene from that in common products appellants claimed explained its presence. In his trial testimony, Nordquist displayed extensive knowledge about the flammable properties of naphtha and in which products it may be found.
Appellees also presented testimony from Jack Green, an electrician with an electrical engineering degree. Green found no evidence of a mechanical or electrical reason for the fire. In his opinion, intermittent use of the camera light over a twelve-year period could not have produced sufficient heat to pyrolyze (change chemically due to the action of heat) the wall and cause spontaneous combustion.
To show that Nordquist was connected to the crime, appellees provided evidence to establish his financial motive to commit arson. Most of the financial evidence was provided by Nordquist’s CPA, Peter Conlan, who had worked for appellants since 1983. The evidence showed that Nordquist was in severe financial distress at the time of the fire. Nordquist’s business, The Success Group, was on the verge of bankruptcy. In addition, Nordquist was going through a bitter divorce, in which his wife was claiming a community property interest in the business. Nordquist was “broke,” according to his divorce attorney. Nordquist acknowledged that he could have recovered up to $680,000 in insurance proceeds, including business interruption coverage, if appellees had paid his claims.
Appellees also presented testimony from Joe Leo, a CPA hired by State Farm to measure appellants’ losses and to investigate Nordquist’s possible financial motive to commit arson. Leo described Nordquist’s financial condition as “desperate” at the time of the fire and rebutted Nordquist’s assertion that the business could have continued as an ongoing concern but for the fire.
The company had a steadily declining negative net worth, and its operating expenses far exceeded its income. The company had been forced to borrow money to make payroll in the months before the fire. The IRS had levied on a bank account six months before the fire in partial satisfaction of unpaid employer’s payroll taxes. Nordquist acknowledged he had received a notice of an IRS tax lien on September 30, 1990, shortly before the fire. The day after the fire, the IRS appeared to levy on the company’s personalty.
*8 At the time of the fire, the company’s debts were estimated to be $274,000, yet it had only $142 in the bank. Nordquist’s business equipment was old, depreciated and encumbered by creditors’ claims and his pending divorce, preventing him from obtaining further credit. Nordquist had personally loaned over $40,000 to the business. Business was slow and future prospects were speculative. The $67,000 balloon payment on the building mortgage was past due and the mortgagor had already granted two extensions after posting the property for foreclosure. The mortgagor’s pre-fire appraisal prepared for foreclosure showed the property was insured for more than its value, and that the building was in poor condition with evidence of “deferred maintenance.”
Appellees also provided evidence that Nordquist had the opportunity to set the fire. Nordquist admitted he had no alibi for the time of the fire. Evidence indicated the arson was an “inside job” because there was no sign of forced entry. Of the nine people with keys to the building, only Nordquist had no alibi for the time period immediately surrounding the fire and only Nordquist had a motive. The other persons with keys were long-time trusted employees who were financially dependent on their jobs. Even though appellants provided testimony from several witnesses that Joanne Nordquist, who Ron was in the processing of divorcing, wanted to ruin him, Joanne had no access to the building. The locks to the building’s doors had been changed twice since the divorce was filed. In addition, evidence showed that Joanne was at a meeting with her lawyer shortly before the fire.
Vicki Nordquist, Ron’s daughter, was the last employee to leave the building that evening and she testified she left at approximately 6:25 p.m. HFD received the first fire call at 6:47 p.m. The fire officials testified that the fast burning fire had to have started within the thirty-minute period before it was reported.
Nordquist testified he left the business at 5 p.m. with an employee, Don Lawrence, who usually rode home with him. Nordquist took Lawrence to the bank to deposit his paycheck, which occurred at 5:31 p.m., according to the bank’s deposit slip. Nordquist then drove Lawrence home five to ten minutes away. Nordquist admitted it would take less than thirty minutes to drive back to the office from that location. He claimed he went home, called his former wife, Joyce Nordquist, around 6 p.m. to invite her to dinner that night, and then shopped for groceries. Nordquist produced a dated and timed receipt showing his purchases at 7:01 p.m. Thus, there was time between dropping off Lawrence at about 5:40 until his 7:01 p.m. grocery shopping to return to the building and set the fire.
There was disputed testimony concerning whether Nordquist already knew about the fire before he was notified. Emmitt Vauter, who operated a printing business located next to the Success Group, was notified about the fire. He said he tried to call Nordquist, but there was no answer. He left his home about 7 to 7:10 p.m. to drive to the fire scene, and asked his wife, Janice, to continue to call. Janice Vauter called Nordquist’s home a few minutes after 7 p.m. and spoke to a woman she believed to be Joyce Nordquist. Mrs. Vauter testified that when she explained there was a fire at Nordquist’s business, “Joyce” told her “Ron” was already “on his way.” Nordquist testified he did not know about the fire until he received a call from Mr. Vauter at 7:14 p.m. However, Emmitt Vauter testified he did not call Nordquist until after he reached his office and re-established the phone lines at approximately 7:30 p.m.
*9 Other evidence pointing to Nordquist included testimony from Nordquist’s secretary who observed Nordquist remove two boxes from the business the day of the fire. She also noted Nordquist was pacing around, holding what appeared to be an IRS envelope, going to his car and then returning without having driven anywhere.
In addition to the testimony from these witnesses, the jury had the benefit of hundreds of pages of documentary evidence pertaining to the cause of the fire and Nordquist’s financial condition. Our review of the record reveals ample evidence supporting the jury’s verdict. There is clearly more than a scintilla of evidence supporting the jury’s finding; therefore, we must overrule appellants’ “no evidence” challenge. Appellants’ factual sufficiency challenges now require us to consider all the remaining evidence in the record.
The evidence contrary to the jury’s finding includes the testimony in support of appellants’ theory that the fire was caused by spontaneous combustion of the wood panelling behind the “Green Forox” camera. Appellants called a lighting and electrical products salesman who testified that the heat of a 500-watt bulb like that used in the Green Forox camera could have caused the plywood wall five inches from the bulb’s rear metal housing to pyrolize over twelve years to the point where the wall was like kindling. He determined that if the bulb had been left “on” the evening of the fire, the heat could have caused the plywood wall to spontaneously combust and start the fire. Appellants’ fire expert, Joe Perino, agreed wial, his theory. Perino disagreed with the other experts’ interpretations of the burn patterns present at the scene. Appellants’ spontaneous combustion theory was strongly attacked on cross- examination. Perino admitted he had done no tests on the lamp or a similar bulb and did not know how much heat was generated. In addition, there was evidence presented that the light bulb was not “on” before the fire, and the camera operator testified there was no discoloration of the paneling behind the camera lamp as would be expected from long-term heat exposure. Appellees pointed out that Perino examined the scene two years after the fire, and used only a lantern and flashlight for lighting. Perino conceded that if his spontaneous combustion theory was invalid, the only other possibility he saw was that the fire was arson.
Appellants also attempted to explain the presence of naphtha. Appellants called a high school and community college science and math teacher to testify that naphtha is found in many common products, including insecticides, carpet glue and Johnson’s floor wax. Appellees’ chemist expert disagreed, however, that the light naphtha found at the scene corresponded to naphtha found in these products.
Appellants presented testimony that there was no blistering of the floor tiles that could result from the use of an accelerant. They explained the multiple ignition points as resulting from ceiling material falling down to the floor creating new natural ignition points. State Farm’s fire experts generally agreed that in a metal building such as this one, the heat would be trapped at the roof, increasing the heat and intensity of the fire. Appellants also introduced evidence that HFD lab tests on samples removed from the scene failed to show the presence of flammable accelerants. Appellants provided testimony that there was a large fire load, or sufficient combustible material, in the form of thousands of photo slides on shelves in the hallway where appellees contended the fire began. Appellants also supplied testimony that ceiling tiles and carpet are combustibles.
*10 Appellants contend the evidence shows that the fire caused them financial loss rather than a potential benefit. The value of the property was greater than the mortgage owing against it. The property damage to the building was in the amount of the policy limit of $125,300, and the mortgage amount was $66,660.74, indicating insufficient funds would remain to rebuild the building. The separate contents policy provided $260,900 in coverage, and State Farm determined the loss value of the contents was $390,363. Appellants pointed out the coverage for lost earnings and for extra expenses is limited to the amount of actual losses and expenses incurred.
Nordquist admitted his company had substantial debts but believed he could turn the business around once his divorce was resolved. The divorce was set for trial the week after the fire. He and his CPA testified about their plans to satisfy the company’s debts and attract new business.
As support for their position that their financial losses defeated appellees’ motive contentions, appellants cite to Johnson v. Garza, 884 S.W.2d 831 (Tex.App.–Austin 1994, writ denied). There, the fact that one occupant of the burned premises had no personal contents coverage and the other occupant’s personal property was underinsured by $300,000 defeated the motive element of the insurer’s arson defense, entitling the insureds to a directed verdict. Id. at 835. In Johnson, evidence purporting to establish the insured’s precarious financial condition was excluded as speculative and any error in that exclusion was not preserved for review. Id. at 834. Here, in contrast, there is substantial evidence of appellants’ financial hardship to support a motive for arson, even in light of appellants’ claims that the fire also caused losses. The foreclosure by the mortgagor and seizure of property by the IRS could have effectively ended appellants’ business. If appellees had paid appellants’ claims, appellants’ debts could have been paid and they potentially could have rebuilt the building and purchased new, updated equipment.
Appellants also disputed Nordquist’s connection to the fire. They point to the other employees who had keys and that one of them could not produce his key after the fire. In addition, HFD did not make a determination as to who started the fire and did not charge Nordquist. Appellants discount Mrs. Vauter’s version of her phone call to “Joyce.” They assert Mrs. Vauter was emotional, could not recognize the voice, did not know if the woman was Joyce Nordquist, and could not have called Nordquist’s home because she used an outdated phone number. Nordquist testified Mr. Vauter must have been mistaken about the time of his call to Nordquist. Appellants contend that to conclude Nordquist already knew about the fire from the testimony that Mrs. Vauter called and spoke to “Joyce” who told her “Ron” was on his way to the scene would constitute impermissible inference stacking. See Briones v. Levine’s Dep’t Store, Inc., 446 S.W.2d 7, 10 (Tex.1969). Even if this disputed testimony were not considered, however, there is sufficient other evidence connecting Nordquist to the fire. Nordquist admitted he had the opportunity to set the fire, and the record contains ample evidence of financial motive for Nordquist to commit arson.
*11 While there is some evidence contrary to the verdict, we cannot say the verdict is manifestly unjust or clearly wrong. It is well-established that the jurors are the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Skrepnek v. Shearson Lehman Bros., Inc., 889 S.W.2d 578, 579 (Tex.App.–Houston [14th Dist.] 1994, no writ); Rego Co. v. Brannon, 682 S.W.2d 677, 580 (Tex.App.–Houston [1st Dist.] 1984, writ ref’d n.r.e.). The jury may believe one witness and disbelieve others, and may resolve inconsistencies in the testimony. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986). Furthermore, this court does not sit as a thirteenth juror and may not substitute our opinion for that of the jury even if a different answer could be reached on the evidence. City of Webster v. City of Houston, 855 S.W.2d 176, 181 (Tex.App.–Houston [14th Dist.] 1993, writ denied). The jury in this case, as the factfinder, resolved the inconsistencies in the testimony and the credibility of the witnesses against appellants. We conclude the evidence is legally and factually sufficient to support the jury’s finding that Nordquist intentionally set the fire or caused it to be set. Therefore, we overrule points of error four, five, and six.
In points ten and eleven, appellants assert that the expert witnesses who testified the fire was the result of arson espoused incredible theories or were impeached, requiring their evidence to be disregarded. They attack the alleged inconsistencies and improbabilities in the experts’ testimony, but cite to no authority requiring the trial court to strike their testimony or for this court to disregard it. Appellants did not challenge the admissibility of the expert testimony nor did they challenge the experts’ qualificatAN><. In fact, appellants called all of the challenged experts except one in their case-in- chief.
To preserve their complaints about this expert testimony, appellants were required to object to it and move to exclude it at trial. See E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex.1995). In Robinson, the Texas Supreme Court enunciated the standards for evaluating expert testimony and held that once the party opposing the evidence objects, the proponent has the burden of demonstrating its admissibility. Id. (emphasis added). Having made no timely objection, appellants have waived their complaint about the jury’s consideration of the expert testimony that the fire was arson.
Moreover, under these Robinson standards, the jury continues to assess the weight and credibility of the proffered testimony. Id. at 558. The trial court’s role is not to determine the truth or falsity of the expert’s opinion. Id. Nor can we, the reviewing court, re-weigh the expert testimony and the credibility of the expert witnesses. See Maritime Overseas Corp. v. Ellis, 886 S.W.2d 780, 793 (Tex.App.–Houston [14th Dist.] 1994, writ denied) (recognizing that the jury is entitled to weigh conflicting expert testimony and an appellate court has no power to sit as a thirteenth juror). Therefore, we hold that the trial court properly permitted the jury to consider, weigh, and evaluate the credibility of the expert testimony at issue. Accordingly, we overrule points ten and eleven.
*12 In conclusion, having found no error requiring reversal, we affirm the judgment of the trial court.
END OF DOCUMENT