Trevino v. Kent County

• Decision Date: 30 December 1996
• Docket Number: No. 07-96-0017-CV,07-96-0017-CV
• Citation: 936 S.W.2d 488
• Parties: Sylvia A. TREVINO and Oscar Trevino, Individually and as Next Friends of Oscar J. Trevino, Neil Lee Trevino, and Stephanie Ann Trevino, Minor Children, Appellants, v. KENT COUNTY, Texas, d/b/a Kent County Nursing Home, Appellee.
• Court: Texas Court of Appeals

Page 488

936 S.W.2d 488

Sylvia A. TREVINO and Oscar Trevino, Individually and as Next Friends of Oscar J. Trevino, Neil Lee Trevino, and Stephanie Ann Trevino Minor Children, Appellants, v. KENT COUNTY, Texas, d/b/a Kent County Nursing Home, Appellee.

No. 07-96-0017-CV.

Court of Appeals of Texas Amarillo.

Dec. 30, 1996.

Rehearing Overruled Jan. 29, 1997.

Castro & Davis, Isaac M. Castro, Jeffrey S. Davis, Hamlin, for appellants.

Law Offices of Timothy D. Yeats, Timothy D. Yeats, Big Spring, for appellee.

Before BOYD, C.J., and QUINN and REAVIS, JJ.

QUINN, Justice.

Sylvia A. and Oscar Trevino, individually and as next friends of Oscar J. Trevino, Neil Lee Trevino, and Stephanie Ann Trevino (the Trevinos) appealed from a final judgment denying them all recovery against Kent County, Texas, d/b/a Kent County Nursing Home (Kent County). Seven points of error were assigned as basis for reversal. Through the first four, the Trevinos asked whether the court erred in 1) denying their motions for directed verdict or for judgment notwithstanding verdict, 2) submitting the cause to the jury, and 3) denying them damages. In the last three, they asked whether the evidence was factually insufficient to support the verdict and resulting judgment. We answer no to each question and affirm.

Points of Error One, Two, Three, and Four

Points one and two involve the trial court's refusal to grant the Trevinos a directed verdict or to enter a judgment notwithstanding verdict. Specifically, they believed that they proved, "as a matter of law" 1) that Sylvia Trevino sustained an injury during the course and scope of her employment as housekeeper at the Kent County Nursing Home, 2) that having occurred during the course of employment, the injury was compensable, 3) that Sylvia was terminated from her job as housekeeper because she filed a worker's compensation claim in good faith, and 4) that she was damaged as a result of her wrongful termination. Point three involved the allegation that the court erred in submitting the case to the jury since Kent County raised no evidence creating material issues of fact. And, point four encompasses the allegation that Sylvia Trevino should have been awarded damages and attorney's fees due to her wrongful termination. We overrule each.

a. Background

The record revealed that the court submitted three issues to the jury. The first asked the jurors to determine whether Sylvia "receive[d] an injury on or about May 11, 1994, in the course of her employment with" Kent County. The second wanted them to decide whether Kent County "discharged or in any other manner discriminated against ... [her] because ... [she] filed a workers' compensation claim in good faith." The third and final issue involved the amount of damages, if any, which she would be entitled, assuming either or both questions one or two were answered in the affirmative. In response to issues one and two, the jury replied "No." Given that, it never answered question three.

b. Standard of Review

As urged by the Trevinos, and when the appellant endeavors to overcome an adverse fact finding "as a matter of law," we may reverse only if we determine that no evidence exists which supports the jury's finding and that the converse of that finding was established as a matter of law. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989). Yet, with this principle go several others of equal import.

For instance, one cannot forget that the testimony of an interested witness, such as a party, simply raises fact issues which the jury must decide. Estate of Morris, 577 S.W.2d 748, 753 (Tex.Civ.App.--Amarillo 1979, writ ref'd n.r.e.); Prince v. North State Bank, 484 S.W.2d 405, 409-10 (Tex.Civ.App.--Amarillo 1972, writ ref'd n.r.e.); Mackey v. Gulf Ins. Co., 443 S.W.2d 911, 913 (Tex.Civ.App.--Amarillo 1969, no writ). And, because of this, the trial court is generally precluded from entering a directed verdict, or judgment notwithstanding verdict, upon such testimony. Washington v. Reliable Life Ins. Co., 581 S.W.2d 153, 158-59 (Tex.1979): Collora v. Navarro, 574 S.W.2d 65, 69 (Tex.1978); see CPS Int'l, Inc. v. Harris & Westmoreland, 784 S.W.2d 538, 542 (Tex.App.--Texarkana 1990, no writ) (extending the rule to motions for judgment notwithstanding verdict). Yet, this is not so if the testimony imparted by the interested witness is "clear, direct, ... positive, ... free from internal inconsistencies or contradictions, ... uncontradicted by other testimony or circumstances" and free of indicia which would render it reasonably suspect. Washington v. Reliable Life Ins. Co., 581 S.W.2d at 159, quoting Collora v. Navarro, supra. If the latter circumstance arises, then the trial court may base a directed verdict upon the testimony. We now turn to applying these rules to the case at hand.

c. Discussion

1. That the Injury Occurred During the Course of Employment

As the initial witness, Sylvia stated that while working as a housekeeper at the Kent County Nursing Home on May 11, 1994, she attempted to place a water bottle atop a drinking fountain. In lifting the object, without the help of others, from the floor to a nearby table she allegedly heard and felt her back "pop." When asked at trial if she experienced any pain, her reply ventured from "[w]ell, at that time it just popped and that's about it" to "some pain at the time." However, several months earlier, that is, in April of 1995, she apparently told her doctor that she "had immediate onset of back pain at that time with radiation to the hip " for that was what he wrote in his report. (Emphasis added). She further testified that despite experiencing the "pop," she removed the bottle from the table and affixed it to the fountain, again without the help of anyone.

Next, she stated that Vicki Kyle, her supervisor, not only witnessed the transaction but also received report of the injury from the allegedly injured employee. In response, Vicki directed her to inform Kathy Lisenbee, the administrator of the home. The two then supposedly went to Kathy's office where Sylvia repeated her version of the event. Upon hearing the report, Kathy allegedly "laughed and ... told ... [Sylvia] '[t]here goes another one [and][g]o back to work.' "

Thereafter, Sylvia returned to her chores and worked until May 17th. On the latter date, the pain allegedly became unbearable. So, her husband picked her up from work and took her to a doctor. Sylvia told Kathy of her visit with the doctor on the next day, and Kathy allegedly "dismissed" her.

Of course, Kathy's testimony differed. First, she denied terminating Sylvia's employment; instead, Ms. Trevino was supposedly placed on a medical leave of absence. Attempt to corroborate this was made by stating that the employee was never taken "off of ... [the] books." So too was it said that once Ms. Trevino returned with a "100%" release from her doctor, effort would be made to reinstate her.

Kathy also denied being told of the purported injury on May 11th. Instead, Sylvia allegedly revealed the incident to her seven days later, on the 18th. Furthermore, Kathy recalled that Sylvia originally claimed the incident occurred on May 12, as opposed to May 11. The witness further denied making the cavalier and insensitive comments attributed to her by Sylvia. Rather, Kathy was allegedly concerned with the belatedness of the report since the home had a policy requiring that work-related injuries be reported within eight hours of occurrence.

So too did Kathy state 1) that the first report she received from Sylvia indicated that the injury happened while the bottle was being placed on the drinking urn itself, as opposed to the table, 2) that Sylvia did not act alone but that Vicki and a Marta Duenes assisted her in replenishing the fountain, 3) that Ms. Trevino never complained of back or hip pain between May 11th and May 18th, 4) that the purpose of the May 17th doctor's visit was to let the physician examine "a lump on her hip," 5) that Sylvia had difficulty working under the supervision of Vicki, and 6) that shortly before May 11th Sylvia was given the option to obey Vicki or find employment elsewhere.

Marta Duenes also appeared at trial and testified. And like those of Kathy, her comments tended to contradict Sylvia's. For instance, she proffered 1) that she saw Vicki help Sylvia lift the bottle, 2) that she too assisted Sylvia and Vicki in the task, 3) that all three were laughing and giggling at the time, 4) that she never heard a "popping sound," 5) that she never heard Sylvia complain of any injury, 6) that she never saw Sylvia limp or act in an unordinary manner or in a manner suggesting any injury, and 7) that Sylvia appeared to be "okay" between May 11th and the 18th.

To compare the foregoing testimony is to conclude that little was clear or uncontradicted regarding the circumstances surrounding the supposed injury. For instance, while Sylvia said she acted alone when lifting the bottle, Marta said that she and Vicki helped. While Sylvia said she felt and heard her back pop, no one else present confirmed that. While Sylvia said, at one time, that she immediately felt radiating pain, Marta stated that the group laughed and giggled throughout the incident. While Sylvia testified that she immediately notified the administrator of the injury, the administrator said she mentioned nothing until a week later. While Sylvia said that the injury occurred on May 11th, Kathy remembered her stating that it occurred on the 12th. While Sylvia said she visited a doctor on May 17th because of her back injury, Kathy understood it was to have a lump on her hip checked. While Sylvia said her pain became debilitating over the ensuing days, others said that she appeared normal and acted similarly. While Sylvia said, at one point, that she suffered no pain at the time of injury, she later wavered by asserting that she either suffered some pain which later grew worse or suffered...