Pay & Save, Inc. v. Canales
| Decision Date | 14 September 2022 |
| Docket Number | 04-20-00125-CV |
| Parties | PAY AND SAVE, INC., Appellant v. Roel CANALES, Appellee |
| Court | Texas Court of Appeals |
From the 229th Judicial District Court, Duval County, Texas Trial Court No. DC-16-371 Honorable Baldemar Garza, Judge Presiding
Sitting: Patricia O. Alvarez, Justice, Luz Elena D. Chapa Justice Lori I. Valenzuela, Justice
OPINION ON APPELLEE'S MOTION FOR REHEARING
MEMORANDUM OPINION
On July 27, 2022, we issued our opinion and judgment. Subsequently Appellee timely filed a motion for rehearing. We deny Appellee's motion, but we withdraw our July 27, 2022 opinion and judgment and substitute this opinion and judgment to clarify portions of our analysis.
In this premises liability case, Appellant Pay and Save, Inc. appeals from a multi-million-dollar judgment in favor of Appellee Roel Canales for compensatory and punitive damages. Pay and Save raises three issues: it challenges the sufficiency of the evidence supporting the jury's findings on negligence, gross negligence, and damages.
Having reviewed the evidence, we reverse the trial court's judgment. Because the evidence of gross negligence was legally insufficient, we render judgment that Canales take nothing on that claim. Because the evidence was legally but not factually sufficient to support the jury's findings on Canales's premises liability claim, we remand the cause for a new trial on liability and damages.
Before we turn to Pay and Save's issues, we address Canales's assertion that this court lacks jurisdiction to hear this appeal because Pay and Save did not timely file its notice of appeal.
On October 1, 2019, the trial court signed a final judgment, which incorrectly stated the amount of compensatory damages.
On October 24, 2019, Pay and Save filed a motion to retax costs. On October 30, 2019, Pay and Save filed a motion to modify the judgment. And on October 31, 2019, Pay and Save filed a second motion for JNOV, and a motion for new trial.
On November 25, 2019, the trial court denied all four motions. Nevertheless, on December 3, 2019, the trial court signed an amended judgment that corrected the amount awarded for compensatory damages.
On December 30, 2019, Pay and Save filed a second motion for new trial, and on February 25, 2020, Pay and Save filed a notice of appeal.
Canales contends that Pay and Save's motion to modify the judgment and its first motion for new trial had already been overruled when Pay and Save filed its second motion for new trial. Therefore, the second motion for new trial was not timely, and it did not extend the appellate timetable. Thus, Pay and Save's February 25, 2020 notice of appeal was untimely, and we lack appellate jurisdiction.
Pay and Save argues that the trial court's December 3, 2019 amended judgment was signed while the trial court retained plenary power, and the amended judgment restarted the appellate timetable. Thus, Pay and Save's second motion for new trial extended the deadline to file a notice of appeal to March 2, 2020, its February 25, 2020 notice of appeal was timely, and this court has appellate jurisdiction.
We agree with Pay and Save.
Given the trial court signed its final judgment on October 1, 2019, a motion for new trial or a motion to modify the judgment was due within 30 days-by October 31, 2019. See Tex. R. Civ. P. 329b(a) (); id. R. 329b(g) (motion to modify judgment); Ryland Enter., Inc. v. Weatherspoon, 355 S.W.3d 664, 665 (Tex. 2011) (per curiam). Thus, Pay and Save's motion to modify and its motion for new trial, filed on or before October 31, 2019, each extended the trial court's plenary power "until thirty days after all such timely-filed motions are overruled, either by a written and signed order or by operation of law, whichever occurs first." Tex.R.Civ.P. 329b(e); In re Brookshire Grocery Co., 250 S.W.3d 66, 69 (Tex. 2008) (orig. proceeding).
The trial court denied the pending motions, including the motion for new trial and the motion to modify the judgment, on November 25, 2019, and its plenary power was due to expire on December 27, 2019. See Tex. R. Civ. P. 329b(e), (g); In re Brookshire Grocery Co., 250 S.W.3d at 69. But when the trial court corrected the amount of compensatory damages and signed its amended judgment on December 3, 2019, it did so within its plenary power period, and the corrected judgment restarted the appellate timetable. See Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 313 (Tex. 2000) .
Thus, Pay and Save's second motion for new trial, which assailed the amended judgment and was filed on December 30, 2019, was timely, see Tex. R. Civ. P. 329b(a), (h); Lane Bank, 10 S.W.3d at 313, and it extended the due date for a notice of appeal to March 2, 2020, see Tex. R. App. P. 26.1(a); Ryland Enter., 355 S.W.3d at 665.
Therefore, Pay and Save's February 25, 2020 notice of appeal was timely, and it invoked our appellate jurisdiction. See Tex. R. App. P. 25.1(b); Kenneth D. Eichner, P.C. v. Dominguez, 623 S.W.3d 358, 361 (Tex. 2021) (per curiam).
We overrule Canales's assertion that we lack jurisdiction. We now turn to Pay and Save's evidentiary issues.
In this premises liability case, Roel Canales was injured while he was grocery shopping when he got his foot stuck in a wooden pallet that was supporting a bin of watermelons. He fell, he was injured, and he sued the grocery store owner, Pay and Save.
Pay and Save is a family-owned grocery store chain that owns about 150 stores in Texas, New Mexico, Colorado, Arizona, and Kansas. In 2011, Pay and Save bought a company that owned and operated about fifty Super S Stores in South Texas.
In May 2016, Canales entered the Pay and Save store in Freer, Texas to buy a watermelon. The watermelons were displayed in three large cardboard bins lined up next to each other. Each bin sat on top of a separate wooden pallet.
(Image Omitted)
The cardboard bins were octagonal in shape. The two bins at the ends of the three-bin lineup had triangular cardboard flaps to cover the tops of the exposed corners of the pallets. The corners of the bins where the flaps were located had large red and white arrows pointing down to the flaps.
The wooden pallets were approximately four feet square, and each had a top and bottom deck made of horizontal wooden slats. The two decks were connected by vertical boards on two sides and the center. The space between the top and bottom decks was about four inches, and the pallets were open on two opposite sides. The other two sides were covered with wooden slats.
The pallets' side openings were wider than a human foot; they were designed to receive forklift prongs for moving the bins. There were no signs on the pallets warning about the pallets' side openings.
On the day of the accident, Canales was wearing steel-toed work boots. He entered the store looking for a good-sized watermelon, and he walked directly to one of the three bins. Canales said he did not see the arrows pointing to the exposed corners of the pallets nor the pallets underneath the bins. When he approached the side of a bin, without knowing he was doing so, he put his right foot into the pallet's side opening. After selecting and picking up a watermelon, Canales turned away from the bin towards the register to pay for the watermelon. As he turned away, the toe of his right boot got stuck inside the pallet's opening, which caused him to lose his balance and fall to the ground. When he hit the floor, he heard his elbow crack. It was not until he fell that he saw the pallets underneath the bins.
Canales reported his fall and his injuries to the cashier. He gave his driver's license information to a store employee, and he left the store. A company employee filled out an incident report, which included Canales's statement that he tripped on a pallet. Later that day, Canales's wife drove him to the hospital for treatment.
In December 2016, Canales sued Pay and Save for negligence, under a premises liability theory, and gross negligence. At trial, the only liability question presented to the jury was on premises liability.
The jury found that Pay and Save "knew or reasonably should have known of the danger," Canales and Pay and Save were both negligent, and Canales was 30% responsible and Pay and Save was 70% responsible. The jury awarded Canales compensatory and exemplary damages.
Pay and Save appeals; it challenges the sufficiency of the evidence supporting the jury's findings on negligence, gross negligence, and damages.
We begin by reciting the standards of review and the applicable law.
The standard for legal sufficiency is well known:
Evidence is legally insufficient to support a jury finding when (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact.
Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 613 (Tex. 2016); accord City of Keller v Wilson, 168 S.W.3d 802, 810 (Tex. 2005). ...
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