In re Peterson Constr., Inc.

• Decision Date: 17 June 2016
• Docket Number: NUMBER 13-15-00535-CV
• Parties: IN RE PETERSON CONSTRUCTION, INC.
• Court: Texas Court of Appeals

IN RE PETERSON CONSTRUCTION, INC.

NUMBER 13-15-00535-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

June 17, 2016

On Petition for Writ of Mandamus

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Perkes

Memorandum Opinion by Chief Justice Valdez¹

Relator, Peterson Construction, Inc. ("Peterson"), filed a petition for writ of mandamus seeking to compel the trial court to withdraw its order granting a new trial and to enter judgment in Peterson's favor.² A jury rendered a verdict against the real party in interest, Roberto Perez, on his premises liability claims against Peterson because it foundthat Peterson's construction superintendent, Orlando Perales, was the borrowed servant of another entity. The trial court granted Perez's motion for new trial on grounds that the evidence supporting the verdict was factually insufficient. Concluding that the trial court acted within his discretion in granting a new trial, we deny the petition for writ of mandamus.

I. BACKGROUND

This is a premises defect case regarding personal injuries sustained by Perez at 601 East Kelly in Pharr, Texas. This premises was utilized by the Pharr-San Juan-Alamo Consolidated School District (the district) for administrative purposes, and the district was constructing a new administration building at that site (the PSJA project). In their fifth amended original petition, Roberto and Norma I. Perez³ brought suit against Peterson for personal injuries Roberto received on March 2, 2006, when "he placed his hand on a handrail descending a stairway" located at the administration building and then "suddenly and unexpectedly fell from the stairway." He "fell sideways off the stairway, crashed down onto the pavement below, and suffered, among other things, a broken back." According to Perez, the handrail was not properly secured to the stairwell.

Perez was employed as the community liaison for the district and had come to the premises to meet the superintendent to discuss employment matters and community-related issues. Perez asserted that Peterson was in control of the building because it was the "general contractor, superintendent, and/or subcontractors responsible forconstruction on the premises" and that Peterson was "hired to oversee completion/construction and/or repair of all items on the punch list" issued by the architects of the building. Perez alleged that Peterson was negligent in constructing, installing, and inspecting the stairway and handrail, and he further asserted that Peterson was negligent in the "hiring, training, and . . . supervision of its employee, Orlando Perales, the on-site superintendent for [the building]."

After a four-day jury trial, the jury found that Perales was not acting as an employee of Peterson at the time of the incident. Specifically, the jury answered "no" to the following question:

On the occasion in question, was Orlando Perales acting as an employee of Peterson Construction, Inc.?

An "employee" is a person in the service of another with the understanding, express or implied, that such other person has the right to direct the details of the work and not merely the result to be accomplished.

An employee ceases to be an employee of his general employer if he becomes the "borrowed employee" of another. One who would otherwise be in the general employment of one employer is a borrowed employee of another employer if such other employer or his agents have the right to direct and control the detail of the particular work inquired about.

The definition of "borrowed employee" in the charge tracks the language of the Texas Pattern Jury Charge and comports with language utilized by the Texas Supreme Court. See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 537 (Tex. 2002). In accordance with the instructions in the charge, the jury did not answer the remaining questions in the charge regarding the liability of any other party or Perez's alleged damages. Perez thereafter moved for a new trial on grounds that the evidence was legally and factually insufficient to support the jury's finding that Perales was the borrowed employee of another company, namely Meridian Consulting Group, Ltd. (Meridian).

On July 15, 2015, the trial court granted a new trial. The new trial order reads as follows:

On this date, the Court considered Plaintiff's Motion for New Trial. After considering Plaintiff's Motion, Defendant's Response, the evidence on record, and pleadings on file, and all arguments of counsel, the Court finds that the Motion should be GRANTED.

Specifically, there is factually insufficient evidence to support the Jury's finding that Orlando [Perales] was the borrowed employee of Meridian Consulting. The evidence in the record overwhelmingly supports a finding that Orlando Perales remained the general employee of Defendant, Peterson Construction, Inc. at the time of the incident rather than the borrowed employee of Meridian Consulting. When the evidence in the record is applied to the factors used to determine borrowed employee status, it is apparent the Jury's finding is against the great weight and preponderance of the evidence. See Lara v. Lile, 828 S.W.2d 536, 538 (Tex. App.—Corpus Christi 1992, writ denied) (listing factors); Ortiz v. Furr's Supermarkets, 26 S.W.3d 646, 652 (Tex. App.—El Paso 2000, no pet.) (same); Alaniz v. Galena Park ISD, 833 S.W.2d 204, 207 (Tex. App.—Houston [14th Dist.) 1992, no writ) (same). Specifically, the evidence at trial was:

(1) Peterson Construction had the authority to hire and fire Mr. Perales, not Meridian.

(2) Peterson Construction was responsible for paying Mr. Perales's wages, not Meridian.

(3) There was no evidence that Meridian owned any of the tools or equipment used by Mr. Perales.

(4) Mr. Perales was a construction superintendent and had extensive experience in this occupation. The record reflects that his primary purpose was to oversee completion of the items on the punch list issued by the architects for the PSJA ISD Administration Building. It is also apparent that Meridian, and the surety, United Fire & Casualty, were interested in the results of the work because Perales sent daily field reports, or progress reports, to Peterson Construction, who then sent the reports to Meridian and presumably shared the progress with the surety.

(5) There was no evidence at trial whether Peterson or Meridian could substitute another employee in place of Mr. Perales, but, as statedabove, Peterson Construction had the authority to hire and fire Mr. Perales.

(6) Mr. Perales was assigned as the superintendent of construction at the PSJA Administration Building until the work was completed.

(7) The record indicates that Mr. Perales was an experienced superintendent who went to the PSJA Administration Building on an almost daily basis, with little or no supervision, and reported the progress of the work to Peterson Construction's office in McAllen, who then forwarded the reports to Meridian in San Antonio.

(8) There was no evidence presented at trial that Meridian maintained Mr. Perales on its Social Security or income-tax withholding records. Presumably, these were maintained by Peterson Construction who was responsible for paying Mr. Perales his wages.

The evidence of Meridian Consulting's control over Orlando Perales is so weak that it does not rise to the level to support the Jury's finding of borrowed employee. The evidence at trial demonstrates that Meridian Consulting and Peterson Construction, through its employee Orlando Perales, participated in necessary cooperation as part of a larger undertaking to complete construction of the PSJA Administration Building. See Ortiz, 26 S.W.3d at 652; Anthony Equip. Corp. v. Irwin Steel Erectors, Inc., 115 S.W.3d 191, 199 (Tex. App.—Dallas 2003, pet. withdrawn). The evidence in the record is that both Peterson Construction and Meridian were on the same level or "plane" in the organizational chart of this project. Further, the draft agreement between Meridian and Peterson Construction notes that Peterson Construction's relationship is that of an independent contractor, who is responsible for the acts and omissions of its own employees-here, Mr. Perales. There is evidence of necessary cooperation and coordination between the representatives of the two companies, Orlando Perales and Jack Lenhart, but it does not rise to the level of Meridian controlling the details or direction of Mr. Perales work.

For the above reasons, the evidence supporting the Jury's finding of borrowed employee is so against the great weight and preponderance of all the evidence that it is manifestly wrong and unjust. Accordingly, it is hereby ORDERED that this cause be reset for a new trial.

This original proceeding ensued. By two issues, Peterson alleges: (1) the trial court abused its discretion in ordering a new trial based on the factual insufficiency of the evidence because (a) the evidence presented at trial demonstrated Perales was aborrowed employee; (b) the draft agreement between Peterson and Meridian, cited by the trial court, was insufficient to overcome evidence presented by Peterson; and (c) the trial court simply replaced the opinion of the jury with its own; and (2) the order granting a new trial failed to meet the requirements established by the Texas Supreme Court's opinion in In re United Scaffolding, Inc., 377 S.W.3d 685, 688-89 (Tex. 2012) (orig. proceeding). This Court requested and received a response to the petition for writ of mandamus from Perez and received a reply thereto from Peterson.

II. MANDAMUS

Mandamus is appropriate when the relator demonstrates that the trial court clearly abused its discretion and the relator has no adequate remedy by appeal. In re Reece, 341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). The relator has the burden of establishing both prerequisites to mandamus relief, and this burden is a heavy one. In...