Affirmed and Plurality and Concurring Opinions filed February 13, 2007.
In The
Fourteenth Court of Appeals
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NO. 14-05-01209-CV
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COTEMP, INC., Appellant
V.
HOUSTON WEST CORP., Appellee
On Appeal from the 155th District Court
Waller County, Texas
Trial Court Cause No. 03-05-16828
C O N C U R R I N G O P I N I O N
While I join the court=s judgment, I write separately to emphasize the significance of the trial court=s negligent-retention question, which must be the basis of this court=s legal and factual sufficiency analysis, and to point out that appellant CoTemp, Inc. did not preserve error in the trial court regarding its appellate complaint that only damages for physical injuries can be recovered under appellee Houston West Corp.=s negligent-retention claim.
Is the evidence legally and factually sufficient to support the jury=s negligent-retention finding?
CoTemp challenges the legal and factual sufficiency of the evidence to support the jury=s affirmative answer to jury question 11 regarding negligent-retention. That question and its accompanying instructions read as follows:
Negligence and Ordinary Care
ANegligence@ means failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.
AOrdinary care@ means that degree of care that would be used by a person of ordinary prudence under the same or similar circumstances.
Proximate Cause
AProximate Cause@ means that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event.
An employer has a legal duty to use ordinary care in retaining its employees.@
If your answer to [fraud liability question] is AYes@ as to Bob Robertson, then answer question 11 otherwise do not answer question 11.
As to Cotemp, Inc., Anegligence@ means failure to use ordinary care in retaining Bob Robertson.
Question 11
Did the negligence, if any, of Cotemp, Inc. proximately cause injury to the Plaintiffs?
Answer: Yes
Legally and factually sufficient evidence support this affirmative answer based on the evidence discussed in the plurality opinion. However, the plurality=s analysis refers to legal principles regarding negligent-retention claims that are not incorporated into the jury charge submitted in this case. Because no party objected to the form of question 11 and its related instructions, this court must review the sufficiency of the evidence under the charge submitted, without regard to whether it is a correct statement of the law. See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (holding that court could not review the sufficiency of the evidence based on a particular legal standard because that standard was not submitted to the jury and no party objected to the charge on this ground or requested that the jury be charged using this standard); Hirschfeld Steel Co. v. Kellogg Brown & Root, Inc., 201 S.W.3d 272, 283B86 (Tex. App.CHouston [14th Dist.] 2006, no. pet.) (reviewing sufficiency of evidence based on unobjected-to jury instruction and rejecting various arguments based on different legal standards). Under the applicable standards of review, the evidence cited by the plurality is legally and factually sufficient to support the jury=s affirmative answer to this question. Therefore, it is correct to overrule CoTemp=s first, second, and third issues.
Is the evidence legally sufficient to support the jury=s finding of an underlying tort?
In its opening appellate brief CoTemp asserts in a sub-issue that there is no evidence proving an underlying tort by Bob Robertson against Houston West. Because CoTemp provides no analysis, citations to the record, or legal authorities, CoTemp has waived this issue. See Tex. R. App. P. 38.1(h); San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. App.CHouston [14 Dist.] 2005, no pet.) (holding that, even though courts interpret briefing requirements reasonably and liberally, parties asserting error on appeal still must put forth some specific argument and analysis citing the record and authorities in support of the parties= argument). Even if there were no briefing waiver of this argument, this court still should overrule this sub-issue because, under the applicable legal standard, there is legally sufficient evidence to support the jury=s finding in question 5 that Robertson committed fraud against Houston West.
Did CoTemp preserve error as to its argument that Houston West can recover only damages for physical injuries under its negligent-retention claim?
In its opening brief, CoTemp also asserts that Houston West may recover only damages for physical injuries under its negligent-retention claim. However, before this court could reverse the trial court=s judgment based on this complaint, CoTemp must have presented it to the trial court and obtained an adverse ruling. See GTE Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599, 612, 620 (Tex. App.CHouston [14th Dist.] 2001, pet. denied). The appellate record shows that CoTemp never voiced this complaint in the trial court; therefore, it failed to preserve error.[1] See Tex. R. App. P. 33.1(a); Pascouet, 61 S.W.3d at 612, 620.
For these reasons, the trial court=s judgment should be affirmed.[2]
/s/ Kem Thompson Frost Justice
Judgment rendered and Plurality and Concurring Opinions filed February 13, 2007.
Panel consists of Justices Edelman, Frost, and Seymore. (Seymore, J., plurality) (Edelman, J., concurring without opinion).
[1] CoTemp did assert in its motion for judgment notwithstanding the verdict that A[t]here is no precedent in Texas for the application of the negligent retention doctrine to a case in which damages allegedly resulted from a failure to perform a contractual promise.@ However, this complaint does not encompass the assertion that Houston West may not recover for nonphysical injuries and it is not the same complaint as the appellate complaint before this court.
[2] The plurality correctly finds briefing waiver as to CoTemp=s fourth issue.