Turner v. Precision Surgical, L.L.C.
| Decision Date | 17 October 2008 |
| Docket Number | No. 01-07-01113-CV.,01-07-01113-CV. |
| Parties | Paul TURNER, Appellant, v. PRECISION SURGICAL, L.L.C., Appellee. |
| Court | Texas Court of Appeals |
Panel consists of Justices TAFT, KEYES, and ALCALA.
Appellant, Paul Turner, appeals from a take-nothing judgment, rendered upon a jury verdict, on his retaliatory-discharge and Sabine Pilot1 claims against appellee, Precision Surgical, L.L.C. ("Precision"). The trial court submitted the jury questions on Turner's claims in the disjunctive. We determine whether the trial court erred in doing so and, alternatively, whether any possible error was harmful. We affirm.
Starting approximately in August 2002, Turner was employed as a sales representative for Precision. By letter dated January 30, 2006, Turner was discharged from his employment.
Turner alleged and produced evidence that in July 2005, approximately six months before he was terminated, he was injured on the job from a slip-and-fall accident, which broke two ribs in his lower back. Turner testified that Precision asked him not to file for workers' compensation and instead indicated that he should file a claim under the company's health-insurance plan, which excluded claims that workers' compensation covered. For Turner to receive coverage under the company's health-insurance policy, he would have had to misstate the facts of his injury. Although Turner did not file a claim under the company's health-insurance plan at that time, he did not expressly reject Precision's instruction to do so, and he did not file for workers' compensation benefits then, either. Rather, he decided to "tough it out." When he reinjured his back in November of 2005, he again discussed filing for workers' compensation benefits with Precision, but, according to his testimony, was again discouraged from filing, and did not then do so, either. It was not until January 2006, after he had injured his back a third time, that Turner finally applied for workers' compensation benefits. It was very soon after he had filed for workers' compensation benefits that Precision discharged Turner.
Turner contended that Precision had terminated him for refusing to engage in the illegal activity of insurance fraud (by falsely reporting the facts of his injury to receive coverage under Precision's health-insurance plan), or, alternatively, in retaliation for his having filed a workers' compensation claim in January 2006. In contrast, Precision presented evidence that Turner had been terminated, not as a result of his injury, but, inter alia, due to his pattern of unreliability, dishonesty, harming the reputation of Precision, and insubordination. Precision denied suggesting that Turner do anything illegal, intimating that he would face trouble if he filed a workers' compensation claim, and firing him for these things.
The jury trial began in November 2007. At the conclusion of the three-day trial, the trial court gave the following charge:
Question One: Was Paul Turner discharged for the sole reason that he refused to perform an illegal act?
As used in this question, an illegal act means insurance fraud. A person commits insurance fraud if they [sic] intentionally submit false information knowing it to be false to an insurance company in support of a claim. Answer "yes" or "no."
If you answer "no" to question one, then answer question two. Otherwise, do not answer question two.
Question Two: Did Precision Surgical, LLC, discharge Paul Turner because he filed a workers' compensation claim in good faith?
... [T]here may be more than one cause for an employment decision. An employer does not discharge an employee for filing a workers' compensation claim in good faith. [sic] If the employer would have discharged the employee when he did even if the employee had not filed a workers' compensation claim. Answer "yes" or "no."
(emphasis added).
Turner objected to the conditional nature of the instruction (italicized above) given for the second question. The trial court overruled Turner's objection:
Turner: Plaintiff objects to Question 2 on the basis that it is predicated upon [a] no response for Question 1. Plaintiffs pled the cause of action in the alternative, and both of them—the plaintiff feels that both—both questions should be submitted at the same time for consideration without one requiring a "no" answer.
Turner: Your Honor, it is the plaintiff's position that election of remedies would then be appropriate.
Court: Okay. That's overruled.
The jury returned a negative answer on both causes of action, and the trial court rendered a take-nothing judgment.
In his sole issue, Turner argues that the instruction preceding Question Two was improper because the trial court conditioned a response to the second question on a negative response to the first, presenting his claims disjunctively and thus allegedly preventing him from properly presenting both of his claims, which he contends were alternative (but not mutually exclusive) theories of recovery.2
An abuse-of-discretion standard governs challenges to error in the jury charge. Tex. Dep't of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex.1990); Scott Bader, Inc. v. Sandstone Prods., Inc., 248 S.W.3d 802, 819 (Tex.App.-Houston [1st Dist.] 2008, no pet.). A trial court abuses its discretion when its actions are arbitrary, unreasonable, and without reference to any guiding rules or principles. Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex.1997).
Ordinarily, a trial court has broad discretion in submitting jury questions and instructions. Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 256 (Tex.1974); Roy v. Howard-Glendale Funeral Home, 820 S.W.2d 844, 846 (Tex.App.-Houston [1st Dist.] 1991, writ denied). In fact, trial courts have considerably more discretion in submitting instructions and definitions than in submitting questions. See Harris v. Harris, 765 S.W.2d 798, 801 (Tex.App.-Houston [14th Dist.] 1989, writ denied). Nonetheless, a jury charge must fairly place the disputed issues before the jury. Blonstein v. Blonstein, 831 S.W.2d 468, 471 (Tex.App.-Houston [14th Dist.] 1992), writ denied, 848 S.W.2d 82 (Tex.1992). Additionally, a party is entitled to an affirmative submission of all of its theories of recovery that have support in the pleadings and evidence. See TEX.R. CIV. P. 278 (); Exxon Corp. v. Perez, 842 S.W.2d 629, 631 (Tex.1992).
A jury question is conditionally submitted when the jury is instructed to answer the question contingent upon its answer to some other question, whether the predicate answer be in the affirmative or in the negative. See Roy W. McDonald & Elaine A. Grafton Carlson, Jury Trial: Charge, in 4 Texas Civil Practice § 22:30[a] (West Group, 2nd ed.2001) [hereinafter "McDonald & Carlson"]; 71 Tex. Jur.3d. Trial & Alternative Dispute Resolution § 281 (2002). Commentators have noted certain advantages of conditional submissions:
The judicious employment of conditions has many advantages. It may simplify the charge, clarify the jury's task, avoid findings on immaterial questions, prevent the risk of comment on the weight of the evidence, or forestall conflicting findings.
McDonald & Carlson § 22:30[a]. Nonetheless, because it is error for a trial court to refuse to submit a question when there is some evidence to support its submission, an improper conditional submission that "deprives a party of the affirmative submission of an issue raised by the pleadings and evidence ... constitutes reversible error." Varme v. Gordon, 881 S.W.2d 877, 881 (Tex.App.-Houston [14th Dist.] 1994, writ denied). For example, it is improper to condition a question submitting one cause of action upon an affirmative answer to a question submitting another cause of action when the elements of two causes of action are different and each constitutes a separate, independent theory of recovery. See id.
Disjunctive submission of jury questions is governed by Texas Rule of Civil Procedure 277, which provides, in part:
The court may submit a question disjunctively when it is apparent from the evidence that one or the other of the conditions or facts inquired about necessarily exists.
TEX R. CIV. P. 277. "The disjunctive submission provision contained in Rule 277 was added to the jury charge rules in 1940 as an exception to separate and distinct submission." See William V. Dorsaneo III, Revision & Recodification of the Texas Rules of Civil Procedure Concerning the Jury Charge, 41 S. TEX. L.REV. 675, 714 (Summer 2000) [hereinafter "Dorsaneo, Revision & Recodification"]; see also TEX.R. CIV. P. 277, 3 TEX. B.J. 566 (1940, amended 1941) (allowing use of disjunctive submission of two or more inconsistent issues in one question as one of very limited exceptions to rule that otherwise required separately and distinctly submitted special issues). "Accordingly, disjunctive submission is simply one type of broad-form submission." Dorsaneo, Revision & Recodification at 714.
A disjunctive submission has been described as "an `either/or' question posed in a manner that necessarily prevents the two factual alternatives inquired about from being found to exist concurrently." R. Mike Borland, Comment, Disjunctive Submission of Inferrential Rebuttal Issues, 33 BAYLOR...
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