King Fisher Marine Serv., L.P. v. Tamez

Decision Date29 August 2014
Docket NumberNo. 13–0103.,13–0103.
Citation443 S.W.3d 838
PartiesKING FISHER MARINE SERVICE, L.P., Petitioner, v. Jose H. TAMEZ, Respondent.
CourtTexas Supreme Court

Daniel D. Pipitone, Steven Jon Knight, Chamberlain Hrdlicka White Williams & Aughtry, Houston, TX, for Petitioner King Fisher Marine Service, L.P.

John C. Schwambach Jr., Stevenson & Murray, P.C., Houston, TX, Respondent Jose H. Tamez.

Opinion

Justice BROWN delivered the opinion of the Court, in which Justice JOHNSON, Justice WILLETT, Justice LEHRMANN, and Justice BOYD joined.

In this case we consider whether a trial court must entertain charge objections up to the time it charges the jury or whether it acts within its discretion in setting an earlier deadline. We also consider whether sufficient evidence supported the jury's finding that an injured seaman was following a specific order and was therefore excepted from contributory negligence. The court of appeals concluded the trial court acted within its discretion in refusing to hear a last-minute charge objection and that sufficient evidence supported the jury's specific-order finding. For the reasons below, we affirm.

I

Jose Tamez was working as a welder on board the Leonard M. Fisher, a dredging vessel operated by King Fisher Marine Service, L.P., when he injured his left arm helping two crew members lift a large and heavy socket-wrench assembly. The assembly, which consists of a long shaft inserted into the edge of a large socket, is used to loosen and tighten a nut that secures a “cutterhead” to the ship. The cutterhead extends from the ship to the floor of the channel that is being dredged.

The crew must periodically unattach and reattach the cutterhead to accommodate extensions that enable it to reach the desired depth. Attaching or unattaching the cutterhead requires the assistance of several crew members. Following the attachment, a crew member welds a cap over the nut to hold it in place.

The crew was in the process of reattaching the cutterhead when Tamez was injured lifting the socket while two crewmates, Captain Jorge Cordova and Deck Captain Ricardo Delgado, lifted the shaft. The three men were the only witnesses to the incident. Delgado testified he remembered essentially nothing, leaving Tamez and Cordova to offer their respective accounts of what happened.

Tamez testified he had finished cutting a cable near the cutterhead and was carrying his welding torch when he walked around the cutterhead to find Cordova and Delgado “trying to remove the socket and the shaft with their hands” while the assembly “was almost falling.” Tamez testified Cordova “demanded, yelled out for [him] to help them fast because it was going to fall.” Tamez further recalled, “I had the torch on the right arm, so I used my left arm to help them.” He did not stop to set down his torch, Tamez said, [b]ecause [Cordova] yelled. It was to do it fast.”

Cordova agreed he ordered Tamez to assist, but testified he and Delgado had not attempted to lift the assembly before he called on Tamez to help, at which time the three men lifted the assembly together only after Tamez was “in position.” Cordova testified he and Delgado would not have attempted to lift the socket without Tamez because they needed Tamez, the welder, to weld the cap over the nut once it was in place. Cordova further testified that he twice asked Tamez if he was ready to lift and that Tamez was not holding his welding torch at the time. Lifting the assembly with one hand, Cordova testified, would be impossible.

Tamez successfully removed the socket but later reported he was hurt in the process. He sued King Fisher under the Jones Act, 46 U.S.C. § 31014, arguing he was injured working under a specific order to lift equipment that the crew should have lifted with mechanical assistance or with additional manpower. Under maritime law, a “specific order” is one in which the seaman is ordered to do a specific task in a specific manner or is ordered to do a task that can be accomplished in only one way. Weeks Marine, Inc. v. Garza, 371 S.W.3d 157, 166–67 (Tex.2012). When a seaman is carrying out a specific order, his damages may not be reduced by a finding of contributory negligence. Id. at 166. King Fisher denied Tamez was working under a specific order and argued he was contributorily negligent. The jury found Tamez was working under a specific order to lift the socket and awarded him $420,000, but also found him 50% at fault for his injuries. Based on the jury's specific-order finding, however, the trial court did not reduce Tamez's award.

On appeal, King Fisher argued the evidence was insufficient to support the jury's specific-order finding and that the trial court abused its discretion in refusing the specific-order definition that King Fisher proposed adding to the jury charge. The court of appeals concluded both that there was sufficient evidence to support the specific-order finding and that the trial court did not abuse its discretion in refusing the proposed definition as untimely. Before this Court, King Fisher reurges its argument that the trial court was bound to entertain its last-minute charge objection. In addition, King Fisher argues the court of appeals erred in its sufficiency review by relying on Ninth Circuit precedent to expand the narrow specific-orders exception beyond the boundaries this Court previously recognized in Garza.

II
A

We first address whether the trial court erred in refusing to consider for inclusion in the jury charge King Fisher's proposed definition of a specific order. King Fisher's request came the morning after the formal charge conference and minutes before the trial court would read the charge to the jury. Upon receiving King Fisher's objection to the charge and proposed definition, the trial court asked Tamez's counsel whether he had seen the offer. Counsel acknowledged seeing it but maintained he had not had enough time to verify that it was “the proper instruction in substantially correct form.” The trial court then refused the instruction “mainly because it's not timely,” adding that we needed to have all this stuff done and in by yesterday.”

When King Fisher's counsel protested that he was entitled under the Rules of Civil Procedure to lodge his objection, the trial court responded: “And that may be the rules, but my ruling to you was, everything needed to be in beforehand, and yesterday was the charge conference, and therefore, it needed to be done before the charge conference, not, you know, two minutes before I'm bringing in the jury.” Indeed, as King Fisher's counsel finished making his objections to the charge at the formal charge conference the previous afternoon, the trial court warned the parties: [T]omorrow when we come in, I'm not going to mess with this any further.... [W]hen you leave, you better be very happy with it, or unhappy, but satisfied that we got everything in that reflects my ruling.” The parties apparently understood the seriousness of this warning; when King Fisher's counsel offered the specific-order definition the next morning, he conceded his understanding “from the discussions yesterday that all [King Fisher's new] objections will be overruled.” He added: “I apologize for not making [the objections] yesterday, and I appreciate the Court's ruling on them before the charge is read.”

Nevertheless, King Fisher argues the trial court abused its discretion in refusing its proposed definition as untimely. According to King Fisher, both Rule 272 of the Rules of Civil Procedure and our precedent in State Department of Highways & Public Transportation v. Payne, 838 S.W.2d 235 (Tex.1992), provide that King Fisher's objection was timely and preserved error on appeal. The court of appeals disagreed, concluding that the trial court afforded King Fisher ample opportunity to present its proposed instruction and that refusing the instruction on the morning the charge was to be read was not an abuse of discretion. King Fisher Marine Serv., L.P. v. Tamez, No. 13–10–00425–CV, 2012 WL 1964567, at *6 (Tex.App.-Corpus Christi May 31, 2012, pet. granted) (mem.op.).

B

We review de novo any question regarding the proper interpretation of Rule 272. See Long v. Castle Tex. Prod. Ltd. P'ship, 426 S.W.3d 73, 78 (Tex.2014). A trial court's rejection of a proposed definition is reviewed for abuse of discretion. In re V.L.K., 24 S.W.3d 338, 341 (Tex.2000).

King Fisher argues that Rule 272 of the Rules of Civil Procedure mandates that a trial court accept objections to the charge up to the moment it is read to the jury and that trial courts have no discretion to alter this deadline. The trial court's only discretion in the matter, King Fisher maintains, is its latitude in determining when it will charge the jury, which in turn sets a concomitant deadline for objections to the charge.

Tamez, on the other hand, argues the trial court's discretion allowed it to set an earlier deadline for charge objections and that Rule 272 demands only that the trial court afford the parties a “reasonable time” to “examine and present objections” to the charge. The trial court gave King Fisher sufficient time to review the charge and make objections, Tamez argues, and the trial court acted within its discretion in refusing to consider King Fisher's objection, made just minutes before the trial court was to read the charge.

C

Trial courts have “inherent power to control the disposition of cases ‘with economy of time and effort for itself, for counsel, and for litigants.’ Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240 (Tex.2001) (per curiam) (quoting Landis v. N. Am. Co., 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936) ). Accordingly, the ‘discretion vested in the trial court over the conduct of a trial is great.’ Id. (quoting Schroeder v. Brandon, 141 Tex. 319, 172 S.W.2d 488, 491 (1943) ). This discretion empowers a trial court to fulfill “a duty to schedule its cases in such a manner as to...

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