COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-062-CV
CHRISTOPHER O’DELL AND APPELLANTS
ARLINGTON STEAKHOUSE, INC.
V.
REBECCA W RIGHT APPELLEE
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FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY
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OPINION
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I. INTRODUCTION
Appellee Rebecca W right (“W right”) sued Appellants Christopher O’Dell and
Arlington Steakhouse, Inc. (“O’Dell”) for sexual harassment, assault and battery, and
constructive discharge. A jury found in favor of W right, awarding a total of $425,000
in past mental anguish damages based on its findings of sexual harassment and
assault. In four issues, O’Dell argues that the trial court erred by not allowing O’Dell
to call a witness; that the trial court erred by allowing W right to testify about being
abducted and sexually assaulted when she was five years old; that the trial court
erred by not applying a statutory cap to the sexual harassment damages; and that
the evidence is legally and factually insufficient to support both the jury’s mental
anguish finding and the amount of damages awarded. W e will affirm.
II. B ACKGROUND
W right worked as a waitress at Arlington Steakhouse, a restaurant in
Arlington, Texas, from July 2004 to October 2004. By all accounts, after O’Dell had
verbally reprimanded W right for serving a dessert not available on the menu to a
long-time customer of the restaurant, W right quit and walked out. Shortly thereafter,
W right filed a complaint against O’Dell with the Texas W orkforce
Commission—alleging sexual harassment. After receiving a right-to-sue notice,
W right filed this present lawsuit.
According to W right’s testimony at trial, O’Dell—W right’s supervisor and a
stockholder in Arlington Steakhouse—made numerous lewd and sexually suggestive
comments to her, touched her multiple times in a sexually offensive way, and
created a sexually harassing environment for her and other female waitstaff at the
restaurant. W right said that on one occasion, as she was taking a break, O’Dell
stuck his finger down the back of her pants. On another occasion, O’Dell took his
finger and “stuck it down [the front of her] shirt.” W right said that both times she told
O’Dell not to do such things, but he “smirked and walked off.” W right alleged that
O’Dell had also once stuck his tongue in her ear as she was entering orders in the
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restaurant’s computer. W right said that O’Dell also brushed his body up next to
hers, so much so that she could feel his “private part” pressed against her body.
W right testified that these events made her feel “[v]ery gross, very dirty,” and “very
angry.” W right said that each time O’Dell would do these types of things, she told
him to stop.
W right also testified to a number of comments O’Dell made to her during her
employment at the restaurant. W right said that at the end of her shift, she would
report to O’Dell so that he could make sure her stations were in order. W right said
that O’Dell would frequently look her “up and down” and make sexually-connoting
comments like, “[L]ooks good to me.” She said that he would also make comments
about how her bottom looked good in her pants, how she smelled good, or that her
breasts looked good in certain shirts. W right said that O’Dell also made even more
advancing comments. She said that O’Dell once propositioned her to go upstairs
and perform oral sex for $20. On another occasion, O’Dell allegedly spoke about
how his fingers were “double jointed” and asked W right to “imagine what I can do.”
W right said that O’Dell’s comments were clearly sexual in nature. He allegedly also
propositioned W right to have a “threesome” with O’Dell and his wife and once invited
W right over for a nude swim in his pool. W right said that O’Dell’s alleged conduct
was typical of him and that he had done these types of things to other waitresses.
W right’s attorney introduced a portion of a petition by one of W right’s co-workers
who had also filed a similar suit against O’Dell.
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W right testified that O’Dell would also degrade her by calling her a “F-ing
whore, F-ing bitch, stupid waitress, [and] stupid whore.” W right said that all of these
comments and conduct by O’Dell made her feel “very low . . . just violated.” W right
said that she did not quit when these events occurred because she needed the job,
was intimidated by O’Dell because he was her superior, and wondered if others
would believe her account of these events. She also said that she felt “helpless” to
leave and that somehow maybe she “deserved” what she was being exposed to.
During direct examination, Wright’s attorney asked her if she had ever in the
past felt similar feelings that others would not believe her. As W right began to
answer, the following colloquy took place:
[W right’s attorney]: Have you ever felt like that before?
[W right]: Yeah.
[W right’s attorney]: W ould you tell the jury about it?
[W right]: W hen I was 5 years old I was outside my mother’s - -
[O’Dell’s attorney]: Objection, Your Honor. Relevance on this
case.
[Trial Judge]: Approach the bench, please.
(Bench conference without court reporter.)
[W right’s attorney]: I’m sorry about the interruption. W ould you
just tell us what happened, briefly?
[W right]: W hen I was 5 years old, I was riding my bicycle out in
front of my mother’s apartment. I was supposed to have a
babysitter watching me.
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[W right’s attorney]: Slow down. You’re talking very fast. I don’t
want you to have to do it twice.
[W right]: W hen I was 5 years old, I was riding my bike in front of
my mother’s apartment. My babysitter was supposed to be
watching me, and she wasn’t. A guy in a truck pulled up and
asked me if I had ever seen a dog. I stopped my bike and
answered him. And at that time he grabbed me and threw me in
his truck and made me lay down, and drove me to some
apartments about an hour away. And there was this field across
from the apartment (Crying), and made me perform oral sex on
him. And then he pulled my shirt over my head and he left. And
I had to walk across the apartments and find somebody to help
me.
[W right’s attorney]: And that was when you were five?
[W right]: Yes.
[W right’s attorney]: W as that your first bad experience with a
male?
[W right]: Yes.
O’Dell’s attorney made no further objections to this testimony, other than the
one preceding the bench conference; and later, during cross-examination, he
exchanged in the following colloquy with W right about the same matter:
[O’Dell’s attorney]: Sure. And -- now, you came up with -- I
understand three days ago you told your attorneys about being
abducted when you were five years old?
[W right]: Yes.
[O’Dell’s attorney]: And certainly if that occurred, I think
everybody in this room would be sympathetic to you. But
obviously when something pops up just before the day of trial
that’s that important, I have to question it. Is there any reason
why you didn’t bring it to your attorneys’ attention earlier?
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[W right]: It’s just something that I needed to talk about.
[O’Dell’s attorney]: W ere there any witnesses to that event? Are
there any witnesses to . . . you being abducted?
[W right]: No.
[O’Dell’s attorney]: Any police reports you have?
[W right]: No.
[O’Dell’s attorney]: W ere the police even called?
[W right]: Yes. There may be a police report.
[O’Dell’s attorney]: Do you have it?
[W right]: No.
[O’Dell’s attorney]: Have you ever actually seen it?
[W right]: No.
W right also testified extensively as to how O’Dell’s alleged actions affected
her. In addition to saying that O’Dell’s actions made her feel “degraded . . . violated
. . . low” and distrustful of working for others, she said that she had trouble forgetting
what had occurred. She said that after the events, she has since interviewed for
jobs and wonders whether her potential new bosses will treat her the same.
W right said that she has nightmares regarding the events. Not only does she
dream about the actual events, but she also has dreams where she is running from
O’Dell. She testified that she once had a dream where she dreamed “for six hours”
that she was trying to save O’Dell from drowning.
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According to W right, she has “a tendency to clinch [her] jaw” due to the
anxiety that these events caused her. She said that she often holds her breath when
she talks about O’Dell or anything that “deal[s] with him.” She experiences episodes
of being nauseated and feels the need to vomit. Her body stiffens, her heart races,
and she suffers from the “shakes.” Oftentimes, because of what she suffered, she
feels almost paralyzed and her blood pressure rises. She said that she cannot
control when she thinks about O’Dell and that she cannot control when these side
effects occur.
W right also explained how the trial was very stressful to her and that when she
had to see O’Dell in the courtroom it made her feel dirty, angry, powerless,
disgusted, and scared. W right said that she started experiencing side effects the
day after she quit, that they continued even up to and through trial, and that she did
not have these side effects prior to her employment at the restaurant. W right
admitted that there were other stressful things in her life, including the death of her
husband (whom she was separated from at the time) in a motorcycle accident a few
months after she quit the restaurant. She also admitted that she had never received
medical attention nor prescription drugs to help deal with the symptoms she testified
to.
W right also called O’Dell to testify. O’Dell testified that he possessed a
general understanding regarding the laws pertaining to sexual harassment but that
he did not have a specific policy in place at the restaurant. He said that in the event
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that anyone had a specific complaint, they were to report to him, his wife, or the
assistant manager. O’Dell generally denied W right’s accusations. He testified that
it would have been impossible for him to stick his finger down W right’s blouse
because of the aprons that he required the waitstaff wear at the restaurant. He also
said that it would have been very difficult to stick his finger in the back of W right’s
pants when she was taking a break, without being seen, due to where she would
have been seated during breaks. O’Dell admitted that he would lose his patience
and that he would use pejorative terms sometimes, and he at first denied ever calling
W right the names that she alleged he had called her but later agreed he had called
her a “bitch.” He also admitted that another waitress had brought a similar suit,
alleging complaints similar to those alleged by W right, and that he had settled that
suit as “a business decision.” In this suit, O’Dell brought his own counterclaim for
defamation against W right.
The jury returned a verdict in favor of W right. Specifically, the jury found that
O’Dell assaulted W right, that W right had been constructively discharged from her
employment, and that W right was subjected to harassment based on sex. The jury
found that W right had not defamed O’Dell. The jury awarded past mental anguish
damages on both the assault and sexual harassment claims. The jury did not award
any future mental anguish damages. The trial court entered judgment on the jury’s
verdict. This appeal followed.
III. D ISCUSSION
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A. The trial court’s denying Martinez’s testimony
In his first issue, O’Dell argues that the trial court erred by not allowing him to
call a witness—Amanda Martinez—to testify. W right counters that O’Dell failed to
identify Martinez as a witness with knowledge of material facts on his responses to
W right’s discovery requests and admitted that this failure was due to inadvertence;
thus, the trial court did not abuse its discretion by not allowing Martinez to testify.
W e agree with W right.
A party who fails to make, amend, or supplement a discovery response in a
timely manner may not introduce in evidence the material or information that was not
timely disclosed, unless the court finds that (1) there was good cause for the failure
to timely disclose or (2) the failure will not unfairly surprise or prejudice the other
parties. Tex. R. Civ. P. 193.6(a). The purposes of this rule are to promote
responsible assessment of settlement and prevent trial by ambush. Tex. Mun.
League Intergov’tal Risk Pool v. Burns, 209 S.W .3d 806, 817 (Tex. App.—Fort
W orth 2006, no pet.); see also Alvarado v. Farah Mfg. Co., 830 S.W .2d 911, 913–14
(Tex. 1992) (op. on reh’g) (applying predecessor rule 215(5)). The party seeking to
offer the evidence at issue has the burden to establish good cause or lack of unfair
surprise or prejudice. Tex. R. Civ. P. 193.6(b). The trial court has discretion to
determine whether the offering party has met its burden; however, a finding of good
cause or the lack of unfair surprise or unfair prejudice must be supported by the
record. Burns, 209 S.W .3d at 817. Inadvertence alone will not constitute good
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cause for the failure to timely make, amend, or supplement a discovery response.
See Alvarado, 830 S.W .2d at 915 (“If inadvertence of counsel, by itself, were good
cause, the exception would swallow up the rule, for there would be few cases in
which counsel would admit to making a deliberate decision not to comply with the
discovery rules.”).
In this case, according to O’Dell’s offer of proof, O’Dell intended to ask
Martinez about three things: (1) that O’Dell would not have allowed Wright to wear
the apron she contends she wore while working at the steakhouse; (2) that, contrary
to W right’s allegations, Martinez was never sexually harassed by O’Dell; and (3) that
Martinez overheard W right say that she would lie to get more money in this suit.
During the offer-of-proof hearing, O’Dell admitted that he knew for months
about Martinez’s expected testimony regarding which apron W right would have worn
and Martinez’s expected denial that O’Dell made unwanted advances toward her.
W hen questioned by the trial judge, O’Dell admitted that Martinez was his employee;
that he had known about her for months; and that, despite having procured an
affidavit from Martinez, her affidavit was never delivered to W right. According to
O’Dell, his failure to update disclosure including Martinez as a witness was “by mere
oversight.”
Furthermore, O’Dell admitted that he had intended to put on Martinez’s
alleged expected testimony regarding W right’s having said she would lie to prove his
counterclaim for defamation against W right and that the information was indeed a
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surprise to both parties. W e conclude that the trial court did not abuse its discretion
by finding that O’Dell failed to establish his burden that there was good cause for the
failure to timely disclose Martinez or prove that his failure to disclose her as a
witness would not have surprised or prejudiced W right. See Tex. R. Civ. P.
193.6(a). W e overrule O’Dell’s first issue.
B. Wright’s testimony regarding her childhood abduction
In his second issue, O’Dell argues that the trial court erred by allowing W right
to testify about being abducted and sexually assaulted when she was five years old.
O’Dell argues that he objected to this testimony at trial and that the trial court
implicitly overruled his objection; thus, he is entitled to raise the issue on appeal.
W right argues that O’Dell never obtained an explicit ruling on his relevance
objection; thus, he has not preserved this potential error for review. Furthermore,
W right argues that O’Dell never raised a separate objection to the testimony at issue
based upon the rule providing for exclusion of relevant evidence if its probative value
was substantially outweighed by danger of unfair prejudice; thus, W right argues, to
the extent that O’Dell now argues that this testimony was prejudicial, he also failed
to preserve that argument for our review. Tex. R. Evid. 403.
To the extent O’Dell is arguing on appeal that W right’s testimony was
prejudicial, he has failed to preserve this complaint for our review because he
objected at trial only that this testimony was irrelevant and not that its probative value
was outweighed by its prejudicial value. Id. Thus, O’Dell’s argument that this
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testimony was introduced solely to “manipulate the jury with sympathy” does not
comport with his objection below and is waived. See Tex. Dep’t of Transp. v. Olson,
980 S.W .2d 890, 897–98 (Tex. App.—Fort Worth 1998, no pet.) (holding appellant
failed to preserve error as to relevancy by objecting to an expert’s qualifications).
To the extent, however, that O’Dell is arguing on appeal that the testimony in
question is irrelevant, it is not readily ascertainable that the trial court implicitly ruled
on O’Dell’s relevancy objection. See Tex. R. App. P. 33.1(a)(2)(A) (stating that in
order to preserve an error for appeal, the trial court must have ruled on a party’s
objection “either expressly or implicitly”). In this case, as W right began to answer
questions about what had happened to her as a child, O’Dell objected—citing
relevance. The trial judge immediately called both parties’ attorneys to the bench
and held a conference off the record. Afterwards, without giving a ruling—and
without any other objections being raised—W right continued to testify regarding this
same subject. This court cannot conclude that this is the type of implicit ruling
contemplated by rule 33.1, and we can find no authority to suggest that an implied
ruling can be found under the facts of this case. Compare Blum v. Julian, 977
S.W .2d 819, 823–24 (Tex. App.—Fort Worth 1998, no pet.) (holding that trial court
implicitly overruled plaintiff’s objections to defendant’s summary judgment proof
when it granted defendant’s motion for summary judgment), with Dolcefino v.
Randolph, 19 S.W .3d 906, 926–27 (Tex. App.—Houston [14th Dist.] 2000, pet.
denied) (holding no implicit ruling could be ascertained from the record).
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Furthermore, O’Dell never requested a running objection regarding W right’s
testimony and in fact later questioned W right about the same evidence; thus, the
general rule that error in the admission of testimony is deemed harmless and is
waived if the objecting party subsequently permits the same or similar evidence to
be introduced without objection would apply, and O’Dell has waived his objection to
this testimony. See Volkswagen of Am., Inc. v. Ramirez, 159 S.W .3d 897, 907 (Tex.
2004) (citing Richardson v. Green, 677 S.W .2d 497, 501 (Tex. 1984)); City of
Houston v. Riggins, 568 S.W .2d 188, 190 (Tex. Civ. App.—Tyler 1978, writ ref’d
n.r.e.).
Additionally, even assuming this potential error was preserved, we conclude
that the trial court did not abuse its discretion by allowing W right to testify to these
matters. Evidentiary rulings are committed to the trial court’s sound discretion. Bay
Area Healthcare Group, Ltd. v. McShane, 239 S.W .3d 231, 234 (Tex. 2007). To
determine whether a trial court abused its discretion, we must decide whether the
trial court acted without reference to any guiding rules or principles; in other words,
we must decide whether the act was arbitrary or unreasonable. Low v. Henry, 221
S.W .3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W .3d 835, 838–39 (Tex.
2004). Generally, evidence will be deemed to be relevant if it tends to prove or
disprove any fact in issue. K-Mart Corp. v. Honeycutt, 24 S.W .3d 357, 360–61 (Tex.
2000). In this case, one of the issues debated between the parties was why W right
did not leave the restaurant after the first encounters that she found sexually
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harassing. Another issue was the extent of mental anguish that W right had suffered
because of O’Dell’s alleged offensive touching and sexual harassment. W right
testified that her fear of speaking out about what had occurred and the degree to
which these events impacted her were shaped by what had happened to her when
she was five years old. Given these issues, and focusing only on whether this
testimony was relevant, we cannot conclude that the trial court acted arbitrarily or
unreasonably by allowing W right to testify over O’Dell’s relevance objection. W e
overrule O’Dell’s second issue.
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C. Evidence supporting mental anguish damages
In his third and part of his fourth issues, O’Dell challenges the legal and factual
sufficiency of the evidence supporting the mental anguish awards. The jury awarded
W right $175,000 in mental anguish damages based on the jury’s finding of assault
and $250,000 in mental anguish damages based on the jury’s finding of sexual
harassment. In these issues, O’Dell attacks both the sufficiency of the evidence
supporting the mental anguish finding and that the awards are unfair and
unreasonable compensation.
An award of mental anguish damages will survive a legal sufficiency challenge
when the plaintiff has introduced direct evidence of the nature, duration, and severity
of her mental anguish, thus establishing that there was a substantial disruption in her
daily routine. Parkway Co. V. Woodruff, 901 S.W .2d 434, 444 (Tex. 1995). W e
apply traditional no-evidence standards to determine whether the record reveals any
evidence of “‘a high degree of mental pain and distress’ that is ‘more than mere
worry, anxiety, vexation, embarrassment, or anger’ to support any award of
damages.” Id. (quoting J.B. Custom Design & Bldg. v. Clawson, 794 S.W .2d 38, 43
(Tex. App.—Houston [1st Dist.] 1990, no writ)). Direct evidence may be in the form
of the parties’ own testimony, that of third parties, or that of experts. Parkway, 901
S.W .2d at 444. The evidence also must justify the amount awarded. Saenz v.
Fidelity & Guar. Ins. Underwriters, 925 S.W .2d 607, 614 (Tex. 1996). Although the
impossibility of any exact valuation requires that juries be given a measure of
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discretion in finding damages, that discretion is limited. Id. A jury must find an
amount that would fairly and reasonably compensate for the loss; however, juries
cannot simply “pick a number and put it in the blank.” Id.
Here, W right testified that on many occasions she had experienced anxiety,
which included clinching her jaw, holding her breath, and the sensation of feeling stiff
and unable to move: “I just stand still, like I’m stuck, I’m rooted. Like almost - - it’s
like almost paralyzing.” She said that she also experienced feelings of being
nauseated and had episodes where her heart raced and her blood pressure rose.
W right testified that she experienced “shake[s].” According to W right, she had
nightmares, including dreams where she was running from O’Dell or saving him from
drowning. W right said that these symptoms began “the next day” after quitting when
she discussed the events with her mother and that these side effects continued
throughout the nearly four-year period leading up to trial. W right further testified that
retelling these events in preparation for trial made her feel “dirty,” “angry,”
“disgusted,” and “powerless.” W right said that when she recalls what transpired, it
is as though she is experiencing the events “all over again.” W e conclude and hold
that W right presented legally and factually sufficient evidence of compensable
mental anguish both to the assault and to the sexual harassment claims. But our
inquiry does not end there because W right also must have presented evidence to
justify the amount awarded. Saenz, 925 S.W .2d at 614.
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In Saenz, our supreme court held that there must be evidence that the amount
of damages awarded by the jury for mental anguish was fair and reasonable but
acknowledged that such determination is often difficult:
There must be evidence that the amount found is fair and reasonable
compensation, just as there must be evidence to support any other jury
finding. Reasonable compensation is no easier to determine than
reasonable behavior—often it may be harder—but the law requires
factfinders to determine both. And the law requires appellate courts to
conduct a meaningful evidentiary review of those determinations. Id.
In Bentley v. Bunton, our supreme court reviewed a mental anguish award of $7
million, holding that it was excessive and without support in the evidence. 94
S.W .3d 561, 607 (Tex. 2002). W ith regard to appellate review for evidentiary
support of noneconomic damages, the Court wrote:
Just as a jury’s prerogative of assessing the credibility of evidence does
not authorize it to find liability when there is no supporting evidence or
no liability in the face of unimpeachable evidence, so a large amount of
mental anguish damages cannot survive appellate review if there is no
evidence to support it, or a small amount of damages when the
evidence of larger damages is conclusive. The jury is bound by the
evidence in awarding damages, just as it is bound by the law.
Id. at 606. Citing Saenz, the Bentley court “rejected the view that [the authority for
appellate review of insufficient evidence] displaces [an appellate court’s] obligation
. . . to determine whether there is any evidence at all of the amount of damages
determined by the jury.” Id. Recognizing that reasonable compensation is not easy
to determine, we conclude that there is sufficient evidence in the record to support
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the amount of the jury’s awards for mental anguish and that the amounts awarded
are fair and reasonable.1
The jury heard testimony from W right as to the disruption in her life and the
personal toll taken by the events surrounding the assault and sexual harassment.
Moreover, the jury was asked to consider an award for W right’s future mental
anguish, but it awarded no damages to her on this issue. See Schindler Elevator
Corp. v. Anderson, 78 S.W .3d 392, 415 (Tex. App.—Houston [14th Dist.] 2001,
judgm’t vacated w.r.m.) (reasoning that an award of some damages and not others
indicates that jury “measured carefully” damages issue). From this record, it is
certain that the jury did much more than “simply pick a number and put it in the
blank.” See Saenz, 925 S.W .2d at 614. W e conclude and hold that the jury’s
awards for the assault and for the sexual harassment were fair and reasonable. W e
overrule O’Dell’s entire third and this portion of his fourth issues.
D. Texas Labor Code Section 21.2585’s statutory cap
In the remainder of his fourth issue, O’Dell argues that the trial court erred by
entering judgment based on the jury’s finding of an award in excess of Texas Labor
Code Section 21.2585’s statutory cap. See Tex. Lab. Code Ann. § 21.2585(d)
1
In Saenz, our supreme court concluded that there was no evidence to
support the jury’s $250,000 award for mental anguish damages, considering that the
only evidence found in the record was one question and one answer, which indicated
that Saenz worried and that she believed she and her husband might lose their
home and that they could not afford the medical bills. 925 S.W .2d at 614.
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(Vernon 2006). The labor code sets the maximum damages allowable, both
compensatory and punitive, dependent on the number of employees of the
defendant. See id. The damages awarded to W right totaled $250,000 on the sexual
harassment claim. An award of this amount would require the defendant to employ
at least 500 persons. See id. O’Dell argues that because his steakhouse employed
fewer than 100 employees, the mental anguish damages for W right’s sexual
harassment claim should have been capped at $50,000. Id.
In this case, O’Dell admits that he never pleaded the damages cap. As a
general rule, where maximum damages are provided in statutes in Texas, and a
defendant wants to rely on the cap, it is considered a defense that must be pleaded
and proved. Tex. R. Civ. P. 94; Horizon/CMS Healthcare Corp. v. Auld, 34 S.W .3d
887, 896–97, 904–905 (Tex. 2000); see, e.g., Tex. Civ. Prac. & Rem. Code Ann.
§ 74.301 (Vernon 2005) (capping damages against health care providers); Tex. Civ.
Prac. & Rem. Code Ann. § 41.008 (Vernon 2005) (capping punitive damages). W e
hold that it was incumbent on O’Dell, if seeking to avail himself of the protection of
the damage cap, to both plead and prove the defense. See Shoreline, Inc. v. Hisel,
115 S.W .3d 21, 25 (Tex. App.—Corpus Christi 2003, pet. denied) (holding that
statutory cap found in Texas Labor Code section 21.2585 is an affirmative defense
that must be pleaded and proved). Because O’Dell never pleaded the damages cap,
we overrule the remainder of O’Dell’s fourth issue.
IV. C ONCLUSION
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Having overruled all four of O’Dell’s issues, we affirm the trial court’s
judgment.
BILL MEIER
JUSTICE
PANEL: LIVINGSTON, C.J.; MCCOY and MEIER, JJ.
LIVINGSTON, C.J. concurs without opinion.
DELIVERED: August 5, 2010
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