Texas Lawyer, January 22, 2001; SECTION: Pg. 1

BYLINE: MARY ALICE ROBBINS

A recent ruling by the Texas Supreme Court struck a blow for a jury's
right to decide certain civil cases, some legal experts say. In Lozano
v. Lozano, the court held that a jury can reach a conclusion based on
circumstantial evidence, even if more than one reasonable inference
could be drawn.

After a four-paragraph per curiam opinion, the court goes to the heart
of the matter in various concurring and dissenting opinions.

"A jury is entitled to consider the circumstantial evidence, weigh
witnesses' credibility and make reasonable inferences from the evidence
it chooses to believe," Chief Justice Tom Phillips said in a concurring
and dissenting opinion.

Phillips' opinion also admonished the courts not to second-guess juries.
"If circumstantial evidence will support more than one reasonable
inference, it is for the jury to decide which is more reasonable,
subject only to review by the trial court and the court of appeals to
assure that such evidence is factually sufficient," Phillips said in the
opinion.

Joining Phillips in most of the opinion were Justices Craig Enoch,
Deborah Hankinson, James Baker and Greg Abbott and former Justice Al
Gonzales.

One law professor believes the ruling represents a turn-around by the
court's majority on the "equal inference" rule, which has been used to
block juries from hearing conflicting circumstantial evidence cases.

"This is a pretty flat-out rejection of a rule that had limited utility
and had gotten in the ascendancy by accident," says Bill Dorsaneo, who
teaches at Southern Methodist University School of Law.

Justice Nathan Hecht, in a separate concurring and dissenting opinion,
says the majority acknowledges the equal inference rule, "but then in a
remarkable semantical sleight, abolishes it." Justice Priscilla Owen
joined him in the opinion.

Hecht contended that the rule "expressly requires that an accepted
inference not only be reasonable but that it be probable."

The concept became the law in Texas when the Supreme Court applied it in
Hammerly Oaks Inc. v. Edwards in 1997. In that case, a resident had sued
an apartment complex after being brutally assaulted. The resident
alleged that a leasing agent at the complex failed to warn him that a
carpet cleaner had said he planned to beat up the person who had stolen
his cleaning equipment.

The jury in Hammerly awarded the resident more than $ 500,000, including
$ 375,000 in punitive damages. In a 9-0 decision, the Supreme Court held
that one could not conclude from the facts presented that the agent
acted for the complex's owner.

A jury may not infer fact from meager circumstantial evidence that could
give rise to any number of inferences, none of them more probable than
another, the court said in overturning the award. Trust Juries

Dorsaneo, who filed an amicus brief in Lozano, says it is possible to
draw more than one conclusion in a great many cases and the reason
people go to the courthouse is to resolve such differences. "That's what
a jury is for," he says.

Paula Sweeney, a partner in Howie & Sweeney in Dallas and president of
Dallas ABOTA (American Board of Trial Advocates), says the Supreme
Court's decision re-emphasizes the importance of giving deference to
jury verdicts. "It re-emphasizes that the majority of this court does
respect jury opinions," Sweeney says.

Dan Benson, a Texas Tech University School of Law professor, says he
believes the court's decision reinterprets the equal inference rule
rather than rejects it.

"I think it's going in the right direction," Benson says of the
decision. "You have to trust juries."

Others have adopted a wait-and-see attitude about the impact the
decision will have.

"There's a possibility this means there's a change in the [equal
inference] rule," says Tom Watkins, a partner in Austin's Hilgers &
Watkins. "I'm going to have to see some other cases before I'm sure of
it."

Watkins says until he sees how the court rules in other conflicting
circumstantial evidence cases, he won't know whether Lozano represents a
major change.

Alex Wilson Albright, a professor at the University of Texas School of
Law, is also unsure about the effect of the decision. While all the
justices agree there is legally sufficient evidence to uphold part of
the jury's verdict, Albright says that there is a lot of disagreement
among them on some points.

"We'll see how it plays out in other cases," she says.

Without a Trace

The case was brought by a Baytown woman who accused her ex-husband's
family of aiding him in the abduction of their daughter. The couple was
involved in a child custody battle at the time, court records indicate.

According to Phillips' opinion, Juan Antonio Lozano Jr. picked up the
child, then 20 months old, from the home of his former wife's parents on
April 7, 1995, and took her to his parents' home. The two disappeared
from the home during the weekend, and Lozano called his mother that
Sunday to say he wasn't coming home, the opinion said.

The opinion said Lozano apparently went to Houston, where he cashed a $
1,000 check that had been given to him three weeks earlier by a sister.

The child's mother, Deana Ann Lozano, began calling the home on Sunday
evening and finally was asked not to call again. When she couldn't get
information about the child's whereabouts, the woman sued her former
in-laws in May 1995. Citing financial transactions by various family
members following the child's disappearance, she alleged that they were
providing money to her ex-husband. She also alleged that the family's
actions - including removing posters with pictures of the ex-husband and
child - hampered efforts to find the child.

A 280th District Court jury awarded Deana Lozano $ 1 million against the
defendants, jointly and severally, and an additional $ 1.2 million in
punitive damages assessed against the various defendants individually.
Judge Tom Lindsay signed the final judgment in accordance with the
jury's findings on Aug. 30, 1996.

The verdict was reversed on a 2-1 ruling by the 14th Court of Appeals,
which held that there was no evidence to support the jury's finding
regarding the involvement of any of the family members. Justice John
Anderson wrote the opinion in which he was joined by Justice Harriet
O'Neill, now a member of the state Supreme Court. Former Justice Norman
Lee dissented.

The Supreme Court, with O'Neill not participating, held on Dec. 14 that
there is some evidence to support the jury's determination that three of
the family members assisted the ex-husband. That portion of the case was
sent back to the appeals court for a factual review of the evidence.

However, the court held there is no evidence that two of the family
members - Juan Lozano's father and a sister - were involved in the
child's disappearance and affirmed the appeals court's judgment that the
plaintiff take nothing from them.

The justices had varying opinions about the sufficiency of evidence
against various family members. Although they disagreed on the
application of the equal inference rule, Phillips and Hecht said the
evidence was sufficient to hold only Juan Lozano's mother liable. Baker
found the evidence sufficient to support the jury's verdict against
every member of the family except the father.

Ron Restrepo, who represents the family members, says he has re-filed a
motion for rehearing with the court because the original document was
returned and expects the court to accept it, although the deadline was
Jan. 16. He says the motion cites concerns about Baker's contention that
an individual can be held liable even though she made an unsuccessful
attempt at assistance.

Restrepo, a partner in Doyle, Restrepo, Harvin & Robbins in Houston,
alleges Monica Lozano, one of the sisters, removed one of approximately
1,000 posters that featured the pictures of the missing father and
child. That action could cost her $ 1.2 million, he says. Reba
Eichelberger of Baytown, who along with her son, Paul Koenig, represents
Deana Lozano, has little sympathy for the family. Eichelberger alleges
that family members pulled down posters from sites all over Baytown.
"Literally thousands of posters were put up, and they were gone the next
day," she says.

Eichelberger, a partner in Eichelberger & Koenig, says the now
7-year-old child remains missing and is believed to be in Mexico.

Eichelberger says Deana Lozano "has not heard one word from her child,
not a single word."