Whole Foods Market Southwest, L.P. v. Tijerina, 14-96-00623-CV

• Decision Date: 22 October 1998
• Docket Number: No. 14-96-00623-CV,14-96-00623-CV
• Citation: 979 S.W.2d 768
• Parties: WHOLE FOODS MARKET SOUTHWEST, L.P. f/k/a Whole Foods Market Southwest, Inc., Appellant, v. Elaine M. TIJERINA, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 768

979 S.W.2d 768

WHOLE FOODS MARKET SOUTHWEST, L.P. f/k/a Whole Foods Market Southwest, Inc., Appellant, v. Elaine M. TIJERINA, Appellee.

No. 14-96-00623-CV.

Court of Appeals of Texas Houston (14th Dist.).

Oct. 22, 1998.

Rehearing Overruled Dec. 3, 1998.

Richard A. Valdes, Dallas, for appellant.

Steven Ralph Baker, James Smith, Kimberly A. Warren, Houston, for appellee.

Before YATES, ANDERSON, and EDELMAN, JJ.

OPINION

ANDERSON, Justice.

This case involves the wrongful termination of an employee for which a jury awarded compensatory and punitive damages. Appellant, Whole Foods Market Southwest, L.P., f.k.a. Whole Foods Market Southwest, Inc. ("WFM"), appeals from the judgment entered on the jury verdict in favor of appellee, Elaine M. Tijerina ("Tijerina"). We modify the judgment of the trial court and affirm that judgment as modified.

I. Background

Tijerina was an employee in the deli department at WFM's Wilcrest store in Houston. Tijerina was working the morning shift on Sunday, May 1, 1994, when she was injured. As part of her duties, Tijerina removed the porcelain bowls of food from the deli display case and placed them on a cart to take to the kitchen to refill. As Tijerina was lifting a porcelain bowl from the cart to a table in the kitchen, a piece of the bowl broke off and lacerated the fifth finger of her right hand to the bone. ¹

Tijerina testified she did not take an ambulance to the hospital because Stuart Easterling ("Easterling"), the shift manager on duty at the time of the accident, determined an ambulance was too costly. Instead, Easterling drove Tijerina to the hospital. At the hospital, Tijerina saw Dr. James Beutnagel ("Dr.Beutnagel"), who stitched her finger, gave her a prescription for a pain medication, Darvoset, and referred her to a plastic surgeon, Dr. German Newell ("Dr.Newell"). Tijerina saw Dr. Newell on May 3, 1994. At that time, Dr. Newell prescribed a generic form of Vicodin, another pain medication. On May 4, 1994, Dr. Newell performed surgery on Tijerina's hand. Tijerina received 22 stitches and her hand was placed in a cast. During the course of the following week, Dr. Newell gave Tijerina several more prescriptions for Vicodin. ² Dr. Newell also prescribed physical therapy.

A few days after her surgery, Mark Dixon ("Dixon"), the "store team leader" (store manager), asked Tijerina to return to work and answer the phones. In the meantime, WFM had been sending Tijerina's medical bills to Tommy Sautter ("Sautter") of Sautter & Sautter, a risk management firm employed by WFM, for approval for payment. ³ According to David Quisenberry ("Quisenberry"), the "assistant store team leader" (assistant manager), Sautter contacted him because he was concerned about the amount of pain medication that had been prescribed to Tijerina and her ability to perform light duties while taking the medication. Quisenberry discussed with Dixon his conversation with Sautter.

Subsequently, Dixon and Quisenberry met with Tijerina on May 13, 1994. Tijerina testified they inquired into why she was taking so much pain medication. Tijerina, who was nervous that she was going to lose her job, told them she had not taken all the Vicodin, but had given it to her husband and other people, whose identities she would not disclose. At this point, Dixon placed Tijerina on medical leave of absence.

On May 18, 1994, Dixon and Quisenberry again met with Tijerina. Both Dixon and Quisenberry considered Tijerina's distribution of her medication as an act of theft because WFM had paid for the medication for the purpose of helping Tijerina recover from her injury. Tijerina testified that she told them she had lied when she said she had given away her pain medication because she was afraid of losing her job for taking too much medication. Tijerina further claimed Dixon and Quisenberry would not let her leave the meeting until she had signed an employment termination letter stating she had distributed her pain medication. ⁴ Both Dixon and Quisenberry testified they would not have fired her for taking all the pain medication. Furthermore, they both denied that Tijerina had told them she had lied about giving away her pain medication.

On January 20, 1995, Tijerina filed suit against WFM, alleging claims of negligence and gross negligence with respect to her injury and retaliatory discharge in violation of Section 451.001 of the Texas Labor Code for seeking medical care for her injury. See TEX. LAB.CODE ANN. § 451.001 (Vernon 1996). The jury returned a verdict finding: (1) WFM's negligence proximately caused Tijerina's injury and awarded her $20,000.00 in future medical costs; (2) WFM terminated Tijerina because she sought medical care for her injury and awarded her $16,000.00 in compensatory damages; and (3) WFM's termination of Tijerina was malicious and awarded her $100,000.00 in punitive damages. The jury, however, did not find WFM grossly negligent.

WFM filed a notice of limited appeal in accordance with Rule 40(a)(4) of the Texas Rules of Appellate Procedure. ⁵ In six points of error, WFM contends the trial court erred by allowing the submission of jury questions 7 and 8 because they were not supported by the pleadings, and were not tried by consent; allowing Tijerina to file her first amended original petition post-verdict; entering judgment for Tijerina on the verdict of malicious or willful conduct and on the award of punitive damages because no evidence supported the special issue of malicious or willful termination of employment; and entering judgment awarding future medical costs because no evidence supported the award. WFM does not challenge the award of compensatory damages for past and future lost wages, employment benefits, and mental anguish.

II. Viability of Retaliatory Discharge Claim

Before we can reach the merits of WFM's points of error, we must address a threshold issue affecting the viability of Tijerina's claim that her discharge was retaliatory and, concomitantly, the award of the damages related to that claim. In post-submission briefing, WFM directs our attention to the recent Texas Supreme Court case of Texas Mexican Ry. Co. v. Bouchet, in which the court held an employee has no cause of action under the anti-retaliation statute, Texas Labor Code section 451.001 (formerly T EX.REV.CIV. STAT. ANN . art. 8307), against an employer who is a non-subscriber to the Texas Workers' Compensation Act. See 963 S.W.2d 52, 57 (Tex.1998). Based on the court's holding in Bouchet, WFM, as a nonsubscribing employer, seeks reversal of the award of not only punitive damages on Tijerina's retaliatory discharge claim, but also of the award of the compensatory damages on that claim.

Generally, the Texas Supreme Court's decisions apply retroactively, unless the Supreme Court exercises its discretion to modify its application. See Bowen v. Aetna Cas. & Sur. Co., 837 S.W.2d 99, 100 (Tex.1992); see also Texas Boll Weevil Eradication Foundation, Inc. v. Lewellen, 952 S.W.2d 454, 503 (Tex.1997) (supplemental opinion on rehearing). When the applicable law changes during the pendency of an appeal, the court of appeals must render its decision in light of the change in the law. See Blair v. Fletcher, 849 S.W.2d 344, 345 (Tex.1993); Lubbock County v. Strube, 953 S.W.2d 847, 858 (Tex.App.--Austin 1997, pet. for review filed).

Tijerina asserts WFM did not preserve this complaint for appeal because it did not raise this issue in the trial court. WFM contends it could not have been "aware of its right to challenge [Tijerina's] cause of action under Section 451.001" because at the time Tijerina filed her lawsuit, two courts of appeals had already held an employee could recover from a nonsubscribing employer for retaliatory discharge. See Texas Health Enters., Inc. v. Kirkgard, 882 S.W.2d 630, 633 (Tex.App.--Beaumont 1994, writ denied); Hodge v. BSB Inv., Inc., 783 S.W.2d 310, 313 (Tex.App.--Dallas 1990, writ denied). Moreover, the Texas Supreme Court, acknowledging that the court of appeals in Hodge had "suggested" an employee may maintain a claim for retaliatory discharge against a nonsubscribing employer, stated "We have assumed, because we need not decide in this case, that employees of nonsubscribers are protected by section 451.001." Gunn Chevrolet, Inc. v. Hinerman, 898 S.W.2d 817, 819 (Tex.1995). ⁶

We agree with Tijerina. WFM, by failing to object to the trial court, waived its right to raise this complaint on appeal. WFM could have easily argued in the trial court it was not liable because it was a nonsubscriber to the workers' compensation act. Although Texas Health and Hodge were "considerable authority," they were not binding on this court. Similarly, the Texas Supreme Court in Gunn Chevrolet passed on deciding the issue, leaving it open for later determination. See 898 S.W.2d at 819. After all, the Texas Mexican Railway Company objected during the trial, and having preserved the issue for appeal, raised the issue with the court of appeals in spite of Hodge and Gunn Chevrolet. See Bouchet v. Texas Mexican Ry. Co., 915 S.W.2d 107, 109-11 (Tex.App.--San Antonio 1996). Simply by preserving its complaint for appellate review, the Texas Mexican Railway was able to challenge and ultimately defeat the holding of Hodge and Texas Health regarding the protection of employees of nonsubscribers under section 451.001. See Bouchet, 963 S.W.2d at 57.

The First Court of Appeals addressed an argument similar to the one WFM raises here. See Jones v. Jones, 888 S.W.2d 858, 859-60 (Tex.App.--Houston [1 st Dist.] 1994, writ denied). The appellant in Jones raised on appeal for the first time, several months after the submission of the case but before the issuance of an opinion, a complaint that the trial court had held a hearing on the appellee's motion for summary judgment one day too soon. Id. at 859. The Texas Supreme Court's rendering a decision favorable to the appellant's position prompted the appellant to...