Coronado v. Schoenmann Produce Co.
| Decision Date | 06 February 2003 |
| Docket Number | No. 14-99-01335-CV.,14-99-01335-CV. |
| Citation | 99 S.W.3d 741 |
| Parties | Cenobio CORONADO and Ofelia Coronado, Individually, and as Next Friends of Their Children, Armando, Alicia, Jorge, and Anna Christina, Appellants, v. SCHOENMANN PRODUCE CO., Appellee. |
| Court | Texas Court of Appeals |
Robert William Higgason, Woodlands, Harold J. Eisenman, Houston, for appellants.
Michelle E. Bohreer, Todd J. Zucker, Houston, for appellees.
Panel consists of Justices ANDERSON, HUDSON, and SEYMORE.
SUBSTITUTE OPINION
Our opinion issued December 20, 2001 is withdrawn. We overrule appellants' motion for rehearing and issue this substitute opinion.
Appellants Cenobio Coronado and Ofelia Coronado, individually and as next friends of their children, Armando, Alicia, Jorge, and Anna Christina (the "Coronados"), appeal from the trial court's take-nothing judgment entered in favor of appellee Schoenmann Produce Co. We affirm.
Farming Technologies, Inc. ("FTI") packages and sells potatoes through distributors under the registered trademark name of "MountainKing Potatoes." Schoenmann is a wholesale distributor of fruits and vegetables, including MountainKing Potatoes. FTI and Schoenmann are located in the same warehouse facility, along with several other businesses. FTI and Schoenmann are owned by the same holding company. It is undisputed that, during all times material to this case, Cenobio Coronado was an employee of FTI. Cenobio was injured while replacing a conveyor belt on a potato cull tank. The tank was owned and located on premises maintained by FTI. The Coronados contend Saul Flores, a co-worker employed by FTI, abandoned his assigned duties and failed to timely turn the conveyor off before Cenobio was injured. Cenobio's arm was mangled when it was pulled between two rollers.
The Coronados maintain that Cenobio was an employee of both FTI and Schoenmann at the time of the accident. This contention is based mainly on the assertion that FTI and Schoenmann both had the right to control Cenobio's work.1 The Coronados filed suit against Schoenmann alleging negligence and gross negligence based solely on breach of an employer's legal duties. Subsequently, the Coronados added FTI as a defendant. FTI filed, and the trial court granted, a motion for summary judgment based on limitations.2 The issue at trial was whether Cenobio was an employee of both Schoenmann and FTI. The trial was bifurcated, with the issue of whether Cenobio was an employee of Schoenmann at the time of the accident to be tried first. FTI's status as Cenobio's employer was previously determined by another court.3
When the Coronados rested their case after presenting evidence on the joint control issue, Schoenmann moved for a directed verdict. The trial court granted Schoenmann's motion, finding no evidence in the record that: (1) Schoenmann employed Cenobio at the time of the accident; (2) Cenobio was acting in the course and scope of employment with Schoenmann at the time of the accident; (3) Saul Flores was acting as an employee of Schoenmann at the time of the accident; and (4) Flores was acting in the course and scope of employment with Schoenmann at the time of the accident.
On appeal, the Coronados contend the evidence shows: (1) Schoenmann and FTI exercised joint control over Cenobio and other FTI workers at the time of his work-related injury; (2) Schoenmann exercised persistent supervisory control over Cenobio and other FTI workers at the time of his work-related injury; and (3) there was a significant overlap in the supervisory ranks of Schoenmann and FTI at the time of his work-related injury. As a preliminary matter, Schoenmann contends the Coronados have waived three of the grounds on which the directed verdict was based. Schoenmann asserts the Coronados have only addressed the ground regarding whether Schoenmann employed Cenobio at the time of the accident, but did not address the other three grounds. We conclude that the Coronados have not appealed the points pertaining to Flores's status as a Schoenmann employee. With respect to the ground that Cenobio was not acting in the course and scope of employment with Schoenmann, we find the Coronados have not waived that ground on appeal. Rule 38.1(e) of the Texas Rules of Appellate Procedure provides "[t]he statement of an issue or point will be treated as covering every subsidiary question that is fairly included." Courts are further directed to liberally construe appellate briefing rules. Tex. Mexican Ry. Co. v. Bouchet, 963 S.W.2d 52, 54 (Tex.1998). Keeping these rules in mind, we conclude the issues presented in this appeal fairly include whether Cenobio was acting in the course and scope of employment by Schoenmann at the time of the accident. See Stephenson v. LeBoeuf, 16 S.W.3d 829, 843-44 (Tex.App.-Houston [14th Dist.] 2000, pet. denied).
A directed verdict is proper when: (1) a defect in the opponent's pleading renders it insufficient to support a judgment; (2) the evidence conclusively proves a fact that establishes a party's right to judgment as a matter of law; or (3) the evidence offered on a cause of action is insufficient to raise an issue of fact. Knoll v. Neblett, 966 S.W.2d 622, 627 (Tex.App.-Houston [14th Dist.] 1998, pet. denied). When reviewing a motion for directed verdict, we consider all the evidence in the light most favorable to the nonmovant, disregard all evidence and inferences to the contrary, and give the nonmovant the benefit of all inferences arising from the evidence. Mayes v. Stewart, 11 S.W.3d 440, 450 n. 4 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). In this review, we must determine whether there is evidence of probative value to raise a fact issue on the material question presented. Kline v. O'Quinn, 874 S.W.2d 776, 785 (Tex.App.-Houston [14th Dist.] 1994, writ denied). If we find any evidence of probative value that raises a material fact issue, the directed verdict is improper and the judgment must be reversed and remanded for a jury determination on that issue. Columbia/HCA of Houston, Inc. v. Tea Cake French Bakery & Tea Room, 8 S.W.3d 18, 22 (Tex.App.-Houston [14th Dist.] 1999, pet. denied).
The Coronados seek to impose upon Schoenmann the non-delegable duty of an employer to provide a safe place to work; therefore, it is their burden to show that Cenobio was an employee of Schoenmann at the time of his injury. See Anchor Cas. Co. v. Hartsfield, 390 S.W.2d 469, 471 (Tex.1965). Under Texas law, the test to determine whether an individual is an employee is the purported employer's right to control the details of that individual's work. Newspapers, Inc. v. Love, 380 S.W.2d 582, 592 (Tex.1964); INA of Tex. v. Torres, 808 S.W.2d 291, 293 (Tex.App.-Houston [1st Dist.] 1991, no writ). In the absence of an express contract of employment or where the terms of employment are indefinite, evidence of the exercise of control may be introduced to establish the right to control. See Anchor Cas. Co., 390 S.W.2d at 471; INA of Tex., 808 S.W.2d at 293. The exercise of control "must be so persistent and the acquiescence therein so pronounced as to raise an inference that at the time of the act or omission giving rise to liability, the parties by implied consent and acquiescence had agreed that the principal might have the right to control the details of the work." Newspapers, 380 S.W.2d at 592. However, "the `right to control' remains the supreme test and the `exercise of control' necessarily presupposes a right to control which must be related to some agreement expressed or implied." Id. at 590. Cenobio's employment status when he sustained injuries is to be determined by all the facts and circumstances surrounding his work at that time. See Goodnight v. Zurich Ins. Co., 416 S.W.2d 626, 630 (Tex.Civ.App.-Dallas 1967, writ ref'd n.r.e.).
The issue of whether Schoenmann was Cenobio's employer at the time of his injury is complicated by the Coronados' claim that FTI and Schoenmann were Cenobio's joint employers at the time of his injury. The Coronados contend they presented evidence sufficient to raise a material fact issue on FTI's and Schoenmann's concurrent control over Cenobio's work at the time of his injury. Here, there is no express contract of employment between Cenobio and Schoenmann establishing either Cenobio's status as a Schoenmann employee or Schoenmann's right to control the details of his work. The Coronados claim, in the absence of such a contract, they have presented evidence of Schoenmann's "actual and persistent" exercise of control over Cenobio and other FTI workers, thereby establishing Schoenmann as Cenobio's joint employer.
In support of their argument that Schoenmann was Cenobio's joint employer, the Coronados rely on section 226 of the Restatement (Second) of Agency, which provides:
A person may be the servant of two masters, not joint employers, at one time as to one act, if the service to one does not involve abandonment of the service to the other.
RESTATEMENT (SECOND) OF AGENCY § 226 (1958). They also cite three lines of cases to support their theory that the joint employer doctrine should be applied in this case: (1) application of the doctrine where a purported joint employee caused injury to a third party; (2) application of the doctrine to staff leasing services in the workers' compensation context; and (3) application of the doctrine under the Federal Employers' Liability Act ("FELA"). However, the Coronados' cited cases are factually distinguishable. Here, the Coronados are pursuing a common-law negligence cause of action for breach of nondelegable duties owed by employers to employees.4 Uniquely, the Coronados seek recovery from multiple, alleged employers who elected not to purchase...
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