Granite Const. Co. v. Mendoza

• Decision Date: 05 July 1991
• Docket Number: No. 05-90-00710-CV,05-90-00710-CV
• Citation: 816 S.W.2d 756
• Parties: GRANITE CONSTRUCTION COMPANY, Appellant, v. Rebecca MENDOZA, Individually, As Representative of The Estate of Felix Mendoza, Sr., Deceased, and as Next Friend of Cecilia Mendoza and Felix Mendoza, Jr., Appellee.
• Court: Texas Court of Appeals

Page 756

816 S.W.2d 756

GRANITE CONSTRUCTION COMPANY, Appellant, v. Rebecca MENDOZA, Individually, As Representative of The Estate of Felix Mendoza, Sr., Deceased, and as Next Friend of Cecilia Mendoza and Felix Mendoza, Jr., Appellee.

No. 05-90-00710-CV.

Court of Appeals of Texas Dallas.

July 5, 1991.

Rehearing Denied Aug. 30, 1991.

Thomas S. Leatherbury, Cynthia Keely Timms, Dallas, Peter G. Thompson, Charles K. Hadden, Washington, D.C., for appellant.

Randall E. Hand, Robert H. Osburn, Ralph C. Jones, Dallas, for appellee.

Before WHITHAM, KINKEADE and WHITTINGTON, JJ.

OPINION

WHITHAM, Justice.

Felix Mendoza, Sr. died as the result of an on-the-job accident during the course of his employment on a road construction project undertaken by Mendoza's employer, appellant, Granite Construction Company. Appellee, Rebecca Mendoza, individually, and as representative of the Estate of Felix Mendoza, Sr., deceased, and as next friend of Cecilia Mendoza and Felix Mendoza, Jr., brought this action seeking exemplary damages for gross negligence arising out of a workers' compensation death claim. Of Granite Construction's five points of error, Granite Construction abandoned its third and fifth. Thus, we do not reach and address these points of error. In its first two points of error, Granite Construction challenges the legal and factual sufficiency of the evidence to support jury findings of gross negligence and proximate cause. We find no merit in these points of error. In its fourth point of error, Granite Construction complains of the award of prejudgment interest. We sustain this point of error. Accordingly, we reverse the trial court's judgment insofar as it awards Mendoza pre-judgment interest. We render judgment that Mendoza take nothing against Granite Construction for pre-judgment interest. We affirm the remainder of the trial court's judgment.

In its first point of error, Granite contends that the evidence was legally and factually insufficient to support the jury's finding of gross negligence. A "legally insufficient" point is a "no evidence" point presenting a question of law. In deciding that question, we must consider only the evidence and the inferences tending to support the finding and disregard all evidence and inferences to the contrary. King v. Bauer, 688 S.W.2d 845, 846 (Tex.1985) (on reh'g). If a "no evidence" point is sustained and the proper procedural steps have been taken, the finding under attack may be disregarded entirely and judgment rendered for the appellant unless the interests of justice require another trial. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). It is fundamental that these fact findings must be upheld if there is more than a scintilla of evidence in support thereof. Stedman v. Georgetown Sav. & Loan Ass'n, 595 S.W.2d 486, 488 (Tex.1979). In reviewing "factually insufficient" points, we consider all the evidence including any evidence contrary to the judgment. Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex.1980). A finding can be set aside only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). Applying these principles, we must first determine if there is evidence of probative value to support the jury's findings. When both "no evidence" and "insufficient evidence" points of error are raised in the court of appeals, the court should rule upon the "no evidence" point first. Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981).

Ordinarily we would, therefore, first consider only the evidence and the inferences tending to support the trial court's findings disregarding all evidence and inferences to the contrary. We conclude, however, that we need not do so for two reasons. First, at oral argument, Granite Construction conceded that its legally insufficient challenge would require this court to disregard our Supreme Court's decision in Burk Royalty Co. v. Walls, 616 S.W.2d 911 (Tex.1981). Needless to say, we decline to disregard Supreme Court decisions. We are bound by the pronouncements of the Texas Supreme Court on the law until the Court states to the contrary. Jones v. Hutchinson County, 615 S.W.2d 927, 933 (Tex.Civ.App.--Amarillo 1981, no writ). Indeed, Granite Construction tells us that its legally insufficient challenge appears in its brief to preserve its posture to persuade the Supreme Court to change its holding in Burk Royalty. Regardless, however, of Granite Construction's asserted effort to preserve the matter for Supreme Court review, we note a second reason why we need not rule upon Granite Construction's "no evidence" point "first" or at any time. The reason lies in Granite Construction's failure to brief and argue its legally insufficient challenge. Instead, Granite Construction casts its argument in terms of "against the great weight and preponderance of the evidence." Consider Granite Construction's opening paragraph in its argument under its first point of error:

The overwhelming weight of the evidence establishes that Granite lacked the mental attitude necessary to support the jury's finding of gross negligence and justify an award of punitive damages. As we show below, the evidence convincingly demonstrates that the Company cared about the safety of its employees--including Felix Mendoza--and that it did not decide to ignore a known peril.

Next, consider the closing sentence of Granite Construction's argument: "The overwhelming weight of the evidence negates objective proof of gross negligence." We emphasize that nowhere between opening paragraph and closing sentence does Granite Construction argue "no evidence." Hence, we conclude that Granite Construction failed to present to this court its "no evidence" point of error challenging the legal sufficiency of the evidence to support the jury's finding of gross negligence. Points of error not separately briefed are waived. La Sara Grain Co. v. First Nat'l Bank of Mercedes, 673 S.W.2d 558, 568 (Tex.1984) (on reh'g). A point of error that is not briefed fails to meet the minimum requirements of rule 414(e), Texas Rules of Civil Procedure [NOW TEX.R.APP.P. 74(f) ], and the appellate court considers such a point to be waived. Schero v. Astra Bar, Inc., 596 S.W.2d 613, 614 (Tex.Civ.App.--Corpus Christi 1980, no writ). By failing to present this argument and point of error, Granite Construction has waived its right to complain. We are not authorized to reverse a trial court's judgment in the absence of a properly assigned error. Gulf Consolidated Int'l, Inc. v. Murphy, 658 S.W.2d 565, 566 (Tex.1983); Mullinax, Wells, Baab & Cloutman v. Sage, 692 S.W.2d 533, 536 (Tex.App.--Dallas 1985, writ ref'd n.r.e.) (on reh'g). We overrule Granite Construction's first point of error insofar as it challenges the legal sufficiency of the evidence to support the jury's finding of gross negligence.

Thus, we turn to our assigned task of deciding whether the evidence is factually sufficient to support the jury's finding. In doing so, we must apply the instructions of Burnett v. Motyka, 610 S.W.2d at 736, as directed in Pool v. Ford Motor Co., 715 S.W.2d 629, 633-36 (Tex.1986). We now provide the analysis of all the evidence which must be weighed and considered in deciding whether the evidence is factually sufficient to support the jury's finding.

What the Jury Heard Which Granite Construction Contends to Be Contrary to the Finding

Granite Construction's Safety Program. From top management on down, Granite Construction had "a very strong feeling about the place of safety in the workplace." Granite Construction appointed a corporate Safety Coordinator, Bruce Summers, who developed safety policy and a safety program, consulted and advised on employee safety, and monitored the effectiveness of Granite Construction's safety efforts. Summers belonged to the American Society of Safety Engineers and was certified as an instructor for the Occupational Safety and Health Administration ("OSHA"), the federal agency in charge of workplace safety. As part of its safety program, Granite Construction developed a slide presentation on safety, which it showed to new employees before they began work. Granite Construction also required all new employees to read a booklet entitled "Job Safety and You," which addressed various safety rules and procedures. Granite Construction promulgated "Rules of Conduct" that largely concern job safety and mandated that new employees read them before beginning work. Granite Construction verified that new employees had read the Rules, had received a copy of "Job Safety and You" and would become familiar with it, and had viewed the safety presentation by having the employees acknowledge their compliance in writing. The booklet, the Rules, and corporate policy encouraged employees to point out hazardous conditions so that Granite Construction could correct them.

Granite Construction implemented its safety program at specific work sites. At the Highway 121 project, where Granite Construction was the general contractor, Granite Construction had a traffic control plan approved by the State. Pursuant to the plan, Granite Construction erected signs warning traffic of construction activities, and placed high visibility safety barrels on the edge of the road at various locations, including the area where the accident occurred. The signs warned motorists of "Road Construction Ahead" and at various distances (e.g., 1500, 1000 and 500 Feet Ahead), and admonished them to "Observe Warning Signs, State Law." The barrels were approximately 36 inches tall and 18 inches in diameter, with alternating orange and white, reflectorized, 4 to 8 inch stripes, running horizontally around their circumferences. The barrels were highly visible, had good target value, appeared to be formidable obstacles, and commanded the respect of drivers. As part of the traffic control plan, the State mandated that, in certain instances,...