ACCEPTED
08-20-00015-CV
08-20-00015-CV EIGHTH COURT OF APPEALS
EL PASO, TEXAS
3/15/2021 10:58 AM
CASE NO. 08-20-00015-CV
ELIZABETH G. FLORES
CLERK
FILED IN
IN THE EIGHTH COURT OF APPEALS 8th COURT OF APPEALS
EL PASO, TEXAS
EL PASO, TEXAS 3/15/2021 10:58:20 AM
ELIZABETH G. FLORES
Clerk
JORGE L. HERNANDEZ,
Appellant
v.
KING AEROSPACE,
Appellee
On Appeal from Cause No. 2017-DCV-0334
In the County Court at Law No. 3
Hon. Javier Álvarez, Presiding
APPELLANT’S REPLY BRIEF
CATHERINE M. STONE LANGLEY & BANACK, INC.
State Bar No.19286000 Trinity Plaza II, Suite 700
cstone@langleybanack.com 745 E. Mulberry Avenue
OTTO S. GOOD San Antonio, Texas 78212
STATE Bar No. 08139600 (210) 736-6600 – Telephone
ogood@langleybanack.com (210) 735-6889 – Telecopy
RUBEN VALADEZ
STATE Bar No. 00797588
rvaladez@langleybanack.com
ATTORNEYS FOR APPELLANT
JORGE L. HERNANDEZ
TABLE OF CONTENTS
TABLE OF AUTHORITIES...............................................................................ii
ARGUMENT.................................................................................................. 1
I. The trial court did not direct the jury to return a
verdict; it overturned the verdict the jury returned. .............. 1
A. Granting a JNOV in the absence of a written
motion is not an acceptable practice in Texas. ....................... 2
B. The special master’s report cannot change, nor
did it purport to eliminate, the requirement that
a written motion for JNOV is necessary to disregard
a jury verdict. .......................................................................... 9
II. Hernandez preserved error by filing a motion for
judgment on the verdict, which the trial court denied. ........ 11
III. The trial court’s overturning the jury’s verdict
prejudiced Hernandez. ........................................................... 14
IV. The evidence did not prove as a matter of law that
Hernandez was King’s employee. .......................................... 19
CERTIFICATE OF WORD COMPLIANCE ........................................................ 27
CERTIFICATE OF SERVICE .......................................................................... 27
i
TABLE OF AUTHORITIES
Cases
4M Linen & Unif. Supply Co., Inc. v. W.P. Ballard & Co., Inc.,
793 S.W.2d 320 (Tex. App.—Houston [1st Dist.] 1990,
writ denied .............................................................................................. 4
1986 Dodge 150 Pickup v. State,
129 S.W.3d 180 (Tex. App.—Texarkana 2004, no pet.) ......................... 7
Allison v. State,
156 S.W.2d 527 (Tex. Crim. App. 1941) ....................................... passim
Appellee’s Br. at 18-19 (citing,
111 S.W.3d 134 (Tex. 2003) ............................................................ 22, 23
Bywaters v. Gannon,
686 S.W.2d 593 (Tex. 1985) ............................................................ 19, 20
Carter v. State,
No. 05-96-00805-CR, 1998 WL 83799
(Tex. App.—Dallas Feb. 24, 1998, no pet.)
(not designated for publication) ............................................................. 7
City of San Benito v. Cantu,
831 S.W.2d 416 (Tex. App.—Corpus Christi 1992, no writ) .................. 5
Connell v. Connell,
889 S.W.2d 534 (Tex. App.—San Antonio 1994, writ denied) ............... 5
Emerson v. Tunnell,
793 S.W.2d 947 (Tex. 1990) ............................................................ 12, 14
Garza v. Exel Logistics, Inc.,
161 S.W.3d 473 (Tex. 2005) .................................................................. 23
Gibraltar Sav. Ass’n v. Watson,
683 S.W.2d 748 (Tex. App.—Houston [14th Dist.] 1984,
no writ).................................................................................................... 4
In re Bradle,
83 S.W.3d 923 (Tex. App.—Austin 2002, orig. proceeding) ......... passim
In re John G. & Marie Stella Kenedy Mem'l Found.,
315 S.W.3d 519 (Tex. 2010) .................................................................. 16
In the Interest of B.L.D.,
113 S.W.3d 340 (Tex. 2003) .................................................................. 11
Jackson v. Axelrad,
221 S.W.3d 650 (Tex. 2007) .................................................................. 24
Lamb v. Franklin,
976 S.W.2d 339 (Tex. App.–Amarillo 1998, no pet.) .............................. 3
ii
Newspapers, Inc. v. Love,
380 S.W.2d 582 (Tex. 1964) .................................................................. 24
Olin Corp. v. Cargo Carriers, Inc.,
673 S.W.2d 211 (Tex. App.–Houston [14th Dist.] 1984,
no writ).................................................................................... 3, 6, 16, 18
Pitman v. Lightfoot,
937 S.W.2d 496 (Tex. App.—San Antonio 1996, writ denied) ............... 4
Port Elevator-Brownsville, L.L.C. v. Casados,
358 S.W.3d 238 (Tex. 2012) .................................................................. 24
Robinson v. Humble Oil & Ref. Co.,
301 S.W.2d 938 (Tex. Civ. App.—Texarkana 1957,
writ ref’d n.r.e.) ....................................................................................... 4
Robles v. Mount Franklin Food, L.L.C.,
591 S.W.3d 158 (Tex. App.—El Paso 2019, pet. denied) ............... 23, 24
Smith v. Safeway Stores,
167 S.W.2d 1044 (Tex. Civ. App.—Fort Worth 1943, no writ) .............. 8
St. Paul Fire & Marine Ins. Co. v. Bjornson,
831 S.W.2d 366 (Tex. App.—Tyler 1992, no writ) ......................... 15, 22
State v. ADSS Properties, Inc.,
878 S.W.2d 607 (Tex. App.—San Antonio 1994,
writ denied) ..................................................................................... 19, 20
White v. White,
172 S.W.2d 295 (Tex. 1943) .................................................................. 20
Wingfoot Enter. v. Alvarado,
111 S.W.3d 134 (Tex. 2003) ............................................................ 22, 23
Rules
TEX. R. APP. P. 44.1.................................................................................. 15
TEX. R. CIV. P. 268 ................................................................................... 10
TEX. R. CIV. P. 301 ........................................................................... passim
Other
BLACK’S LAW DICTIONARY (West 11th ed. 2019) ........................................ 2
iii
ARGUMENT
I. The trial court did not direct the jury to return a verdict; it
overturned the verdict the jury returned.
During the trial, the court warned King of the need to file a
motion for judgment notwithstanding the verdict (JNOV) if King
wanted to overturn the jury’s verdict. 9 RR 28. Having failed to heed
the trial court’s warning, King now tries to characterize the trial court’s
judgment as having directed the jury to return a verdict rather than
having overturned the verdict the jury returned. Appellee’s Br. at x, 8,
10.
But the trial court did not direct the jury to return a verdict, and
whether a trial court should direct a jury to return a verdict becomes a
moot point after the jury has already returned its verdict. In addition to
the legal impediment against directing a jury to return a verdict after it
has already reached one, it would be impossible as a practical matter to
give any directions to jurors who have since left the building and are no
longer directable. Allison v. State, 156 S.W.2d 527, 528 (Tex. Crim. App.
1941) (holding that “when the jury was discharged it lost its identity as
a jury” so that any subsequent verdict would be a “nullity”); In re
Bradle, 83 S.W.3d 923, 927 (Tex. App.—Austin 2002, orig. proceeding)
(“Once a jury is discharged from their oaths, they are subject to contact
1
with and influence by the parties and others so that the jury cannot be
reconstituted.”).
The purpose of a directed verdict is to prevent the case from
reaching the jury. BLACK’S LAW DICTIONARY (West 11th ed. 2019)
(defining “directed verdict” as “[a] ruling by a trial judge taking a case
from the jury”). That did not happen here. The trial court did not take
the case from the jury, it submitted the case to the jurors, who returned
a verdict.
In contrast, the purpose of a JNOV is to overturn the verdict the
jury reached. BLACK’S LAW DICTIONARY (West 11th ed. 2019) (defining
“judgment notwithstanding the verdict” as “[a] judgment entered for one
party even though a jury verdict has been rendered for the opposing
party”). And although the trial court entered a judgment contrary to the
verdict rendered, what did not happen was the filing of a written motion
for a JNOV, even though the trial court warned King it would need to
do so if the case went to the jury, which it did. 9 RR 28.
A. Granting a JNOV in the absence of a written motion is
not an acceptable practice in Texas.
King claims the failure to file a written motion for JNOV after the
jury has returned its verdict is “an acceptable practice in Texas courts.”
Appellee’s Br. at 10. To the contrary, Rule 301 provides that “upon
2
motion and reasonable notice” a trial court “may render judgment non
obstante veredicto if a directed verdict would have been proper.” TEX.
R. CIV. P. 301. A trial court cannot disregard jury findings without a
written request, thus a motion for JNOV must be in writing with notice
to the parties. See Lamb v. Franklin, 976 S.W.2d 339, 343-44 (Tex.
App.–Amarillo 1998, no pet.) (request to disregard jury verdict in
motion for new trial is insufficient); Olin Corp. v. Cargo Carriers, Inc.,
673 S.W.2d 211, 213-14 (Tex. App.–Houston [14th Dist.] 1984, no writ)
(JNOV on no evidence grounds requires written motion).
King cites cases in support of its claim that a written motion for
JNOV was not required and that its earlier motion for directed verdict
was sufficient to permit a JNOV. Appellee’s Br. at 10-11. But reliance
on the cited cases is unavailing because the impropriety of relying on a
motion for directed verdict to overturn a jury’s decision was not at issue
in any of those cases.
The opinions on which King relies merely described the procedural
posture of the litigation by observing that trial courts had announced
they intended to withhold rulings on motions for directed verdict until
after the jury’s verdict; these cases did not hold that doing so was
proper, nor could they make any such determination, because that issue
3
was not before those appellate courts. Appellee’s Br. at 11 (citing Pitman
v. Lightfoot, 937 S.W.2d 496, 536 (Tex. App.—San Antonio 1996, writ
denied); 4M Linen & Unif. Supply Co., Inc. v. W.P. Ballard & Co., Inc.,
793 S.W.2d 320, 327 (Tex. App.—Houston [1st Dist.] 1990, writ denied);
Gibraltar Sav. Ass’n v. Watson, 683 S.W.2d 748, 750 (Tex. App.—
Houston [14th Dist.] 1984, no writ); and Robinson v. Humble Oil & Ref.
Co., 301 S.W.2d 938, 940 (Tex. Civ. App.—Texarkana 1957, writ ref’d
n.r.e.)).
Furthermore, although the trial judge in Gibraltar took the
defendants’ motion for directed verdict “under advisement” and “carried
[it] along with the case,” stating he “wanted to hold any final decision
thereon until he found out what the jury did,” nevertheless, after he
submitted the case to the jury, the defendants, unlike King, filed a
“motion for judgment notwithstanding the verdict,” which the trial
judge denied. Gibraltar, 683 S.W.2d at 750.
Just as an appellate court’s observation that a witness’s answer
constitutes hearsay does not equate to endorsing hearsay as an
“acceptable practice” when the impropriety of that answer is not at
issue, neither does an appellate court’s noting that a trial court had
announced its intention to rule on a motion for directed verdict after
4
receiving a jury verdict equate to authority for that court to do so when
its action was not at issue. Regardless, the direct authority is the
opposite: by definition, a ruling on a motion to direct the jury to return
a verdict must occur before the jury has returned its verdict and has
been discharged. Allison, 156 S.W.2d at 528; Bradle, 83 S.W.3d at 927;
cf. also City of San Benito v. Cantu, 831 S.W.2d 416, 422 (Tex. App.—
Corpus Christi 1992, no writ) (“To complain on appeal about a trial
court’s refusal to grant a directed verdict, the record must reflect that
the defendant presented the motion and that the court ruled on the
motion before the jury returned a verdict.”).
If a litigant is entitled to a directed verdict, the trial court may: (1)
“instruct the jury as to the verdict it must return” or (2) “withdraw the
case from the jury and render judgment.” Connell v. Connell, 889
S.W.2d 534, 539 (Tex. App.—San Antonio 1994, writ denied). The trial
judge did not take either of those actions. Instead, he left the case with
the jury and allowed it to return a verdict. 5 CR 419. At that point, a
directed verdict was no longer available. Allison, 156 S.W.2d at 528;
Bradle, 83 S.W.3d at 927. Neither was a JNOV, because there was no
written motion or notice of hearing to support it. TEX. R. CIV. P. 301;
5
Olin Corp. v. Cargo Carriers, Inc., 673 S.W.2d 211, 213–14 (Tex. App.—
Houston [14th Dist.] 1984, no writ).
King acknowledges that after it rested “it re-urged its directed
verdict motion, which the District Court succinctly denied.” Appellee’s
Br. at 9 n. 1 (citing 9 RR 53). According to King, the trial court’s denial
of the re-urging of that motion “logically followed from its directive that
it would ‘carry’ King’s first motion until after the jury returned.” Id. But
King does not explain the logic of its theory that a trial court can “carry”
a motion for directed verdict at the close of a plaintiff’s evidence,
subsequently deny that motion when the defendant re-urges it at the
close of all evidence, submit the case to the jury and receive its verdict,
but then direct the jury to return a different verdict after having
discharged the jurors and sent them home.
The only result that “logically followed” from the trial court’s
statement that it was withholding a ruling on King’s motion for directed
verdict at the close of the plaintiff’s case is that if King elected to
present evidence, it would have to re-urge that motion at the close of all
evidence (it did) or, if the case went to the jury (it did), King would have
to file a written motion for JNOV (it did not).
6
King did not file a “second” motion for instructed verdict; by its
own admission, it “re-urged” the same motion, and the judge denied it.
Appellee’s Br. at 9 n. 1; 1986 Dodge 150 Pickup v. State, 129 S.W.3d 180,
184 (Tex. App.—Texarkana 2004, no pet.) (“If a party proceeds to
present evidence after that party has moved for a directed verdict, such
party must reurge the motion for directed verdict at the close of the
case, or any error in its denial is waived.”). The record is clear:
KING’S ATTORNEY: “Your Honor, at this time Defendant again
raises his motion for directed verdict on my affirmative
defense.”
THE COURT: “Denied.”
KING’S ATTORNEY: “And Defendant closes, and then re-raises
it again.”
THE COURT: “Denied.”
9 RR 53.
Therefore, despite King’s claims otherwise, the trial court did deny
its motion for directed verdict. Id.; Carter v. State, No. 05-96-00805-CR,
1998 WL 83799, at *2 (Tex. App.—Dallas Feb. 24, 1998, no pet.) (not
designated for publication) (in which the trial court took no action “[to]
instruct[] the jury as to a directed verdict or [to] dismiss[] the jury and
enter[] a judgment,” but instead “denied the motion for an instructed
7
verdict,” which “support[ed] a conclusion that the motion for a directed
verdict was denied”).
Having re-urged the same motion the judge initially said he would
“carry” with the case, and having had that motion denied twice, King
cannot plausibly maintain that the judge did not subsequently deny its
motion for directed verdict. 9 RR 53. King’s theory is both illogical and
legally absurd and contemplates the court directing a jury to return a
verdict after it had already done so and had been discharged.
Although the trial judge initially said he would “carry” the motion
for directed verdict with the case, he did not carry it past the explicit
denial of the re-urging of that motion at the close of all evidence, and he
could not carry it past the jury’s verdict. Allison, 156 S.W.2d at 528
Bradle, 83 S.W.3d at 927. The appropriate procedure to challenge the
verdict of a jury that has returned a verdict and been discharged is a
motion for JNOV, not a motion for instructed verdict. Smith v. Safeway
Stores, 167 S.W.2d 1044, 1046 (Tex. Civ. App.—Fort Worth 1943, no
writ) (“It is also the settled law in this state that where an instructed
verdict should have been given, or when a special issue finding has no
support in the evidence, the court may, upon motion to that effect,
8
disregard the verdict of the jury and render judgment non obstante
veredicto.” (citing TEX. R. CIV. P. 301).
B. The special master’s report cannot change, nor did it
purport to eliminate, the requirement that a written
motion for JNOV is necessary to disregard a jury
verdict.
The order appointing the special master does not “make plain”
that the trial court “was asking the special master to opine on whether
the District Court should grant or deny King’s motion for directed
verdict,” as King claims. Appellee’s Br. at 9. The trial court had already
denied that motion twice and had submitted the case to the jury, which
had returned a verdict. Rather, the order “makes plain” that the trial
judge was asking the special master’s opinion on whether the trial court
should grant Hernandez’s motion to enter a judgment on the jury’s
verdict—the only motion that was pending—or, in the event King filed a
motion for JNOV, which it never did, whether the trial court should
grant that motion instead. 5 CR 455.
King claims Hernandez “is asking this Court to newly impose a
deadline requiring District Courts to decide all directed verdict motions
before submitting issues to the jury.” Appellee’s Br. at 10. But this
deadline is not new. Case law and common sense have long recognized
that a trial court cannot grant a motion to direct the jury to reach a
9
verdict after the jury has already returned one and has been
discharged. Allison, 156 S.W.2d at 528; Bradle, 83 S.W.3d at 927. The
proper mechanism to negate a jury’s verdict is a motion for JNOV after
the verdict (the V in JNOV), not a motion to direct the jury to reach a
verdict after they have already done so and have left the courthouse,
placing them beyond the reach of any direction from the trial court. Id.;
TEX. R CIV. P. 301.
In support of its assertion that a trial court can direct a jury to
render a verdict after it has already done so and been discharged, King
cites Texas Rule of Civil Procedure 268, noting it contains no time
limits and “requires only that a motion requesting directed verdict
‘state the specific grounds therefor.’” Appellee’s Br. at 11 (quoting TEX.
R. CIV. P. 268). But this rule addresses only the content a litigant must
include in the motion, not the deadline for a judge to rule on that
request. TEX. R. CIV. P. 268. Therefore, the absence of any provision
regarding the timing of a ruling on a motion for directed verdict does
not equate to authorization to do so after “submitting an issue to the
jury,” as King urges, because this rule does not answer and was not
intended to answer the question of whether a trial court can grant a
directed after the jury has already returned a verdict. Appellee’s Br. at
10
11. Case law, however, has addressed this question, and the answer is
no. Allison, 156 S.W.2d at 528; Bradle, 83 S.W.3d at 927.
Because the trial court did not direct the jury to return a verdict,
but instead overturned the verdict they returned, the judge’s ruling is,
in substance, a JNOV, issued in the absence of the required motion and
notice. TEX. R. CIV. P. 301. And, as King itself concedes, substance
controls over form, notwithstanding King’s technical attempt to revise
this substantive reality. Appellee’s Br. at 14, n.3.
King claims Hernandez’s arguments represent the Shakespearean
equivalent of “sound and fury,” signifying no reversible error. Appellee’s
Br. at 14. But in trying to twist the trial court’s action into an order
granting a motion for instructed verdict, King is engaging in another
Shakespearean exercise: it undergoes too strict a paradox striving to
make an ugly deed look fair.
II. Hernandez preserved error by filing a motion for judgment
on the verdict, which the trial court denied.
“Requiring parties to raise complaints at trial conserves judicial
resources by giving trial courts an opportunity to correct an error before
an appeal proceeds,” King urges. Appellee’s Br. at 12 (quoting In the
Interest of B.L.D., 113 S.W.3d 340, 350 (Tex. 2003)). But Hernandez
gave the trial judge that opportunity by timely filing a motion asking
11
the court to grant a judgment in accordance with the jury’s verdict
assessing damages in excess of $2,000,000.00. Instead, the court denied
the motion and rejected the jury’s verdict and rendered a take nothing
judgment against Hernandez. 5 CR573. See Emerson v. Tunnell, 793
S.W.2d 947, 948 (Tex. 1990) (holding that the plaintiff preserved error
by filing a motion for judgment on the verdict and obtaining an adverse
ruling from the trial court on that motion).
Nevertheless, King claims Hernandez’s objection was untimely
because he did not make it “at the earliest opportunity” when the
complained-of action “be[came] apparent.” Appellee’s Br. at 12. But
there was no action to complain about until the trial court overturned
the jury’s verdict, and Hernandez had already filed a motion for
judgment, which preserved his right to complain of the trial court’s
error in signing a judgment contrary to the jury’s verdict. Emerson, 793
S.W.2d at 948.
According to King, Hernandez “passed on multiple opportunities
to timely object when it had become ‘apparent’ that the District Court
intended to take up King's directed verdict motion after the jury
returned its verdict.” Appellee’s Br. at 13. But it was not “apparent” that
the trial court “intended to take up” a motion it had already twice
12
denied, especially after having submitted the case to the jury and
having received its verdict—actions and a result that are the antithesis
of “taking up” a motion for directed verdict—particularly after having
told King it would need to file a motion for judgment notwithstanding
the verdict. 9 RR 28.
The only matter “apparent” to Hernandez was that that the trial
court was unjustifiably hesitant to grant his motion for judgment on the
jury’s verdict—the only motion that was pending—and that the judge
wanted an opinion from the special master before ruling on that motion.
5 CR 455. Having received that opinion in the form of a comprehensive
report that confirmed the judge should grant Hernandez’s motion, and
having told King it needed to file a motion for JNOV, which King had
not done, it was not only unexpected, but shocking, that the trial court
overturned the jury’s verdict. 5 CR 462; 9 RR 28.
Hernandez did not have a “strategy of waiting to see whether a
decision [came] out in his favor before challenging the manner in which
the District Court reach[ed] it.” Appellee’s Br. at 14. He had no idea the
trial court would reach the decision it did, considering: (1) King still had
not filed the motion for JNOV, which the trial court had stated would be
necessary to overturn the verdict; (2) the only motion pending before the
13
trial court was Hernandez’s motion for judgment on the jury’s verdict;
and (3) the court-appointed special master had recommended that the
trial court sign a judgment incorporating the jury’s verdict.
Hernandez did not “acquiesce” in King’s characterization of the
issue before the special master as being whether King was entitled to a
directed verdict or not. Appellee’s Br. at 13 n. 2. Regardless, any such
assertion in and of itself is of no consequence; it is the trial court’s
judgment contravening the jury’s verdict that created the error that is
the subject of this appeal, and that error did not occur until the trial
court signed the judgment of which Hernandez complains. That
complaint was timely because Hernandez had filed a motion for
judgment on the jury verdict, thereby reiterating the obvious fact that
any judgment contrary to that verdict would be objectionable. See
Emerson, 793 S.W.2d at 948.
III. The trial court’s overturning the jury’s verdict prejudiced
Hernandez.
“[E]ven if the District Court’s procedure for granting a directed
verdict was unconventional,” claims King, “Hernandez suffered no
prejudice.” Appellee’s Br. at 14.
14
Not unless having a $1,265,577.44 jury verdict taken away
constitutes “suffer[ing] no prejudice.” 1 Furthermore, if, as King claims,
the trial court granted a directed verdict, it was not only merely
“unconventional,” it was also unauthorized.
As King concedes, “[u]nder Texas Rule of Appellate Procedure
44.1, this Court reverses erroneous district court decisions” if they
“probably caused an improper judgment to be entered …” Appellee’s Br.
at 14. Granting a JNOV in the absence of a motion and notice of
hearing and in the face of conflicting evidence constitutes an improper
judgment. St. Paul Fire & Marine Ins. Co. v. Bjornson, 831 S.W.2d 366,
369 (Tex. App.—Tyler 1992, no writ).
A trial court “may not, ordinarily, simply disregard, on its own
initiative or motion, a jury finding and/or render a judgment non
obstante veredicto on its own initiative or motion.” Bjornson, 831
S.W.2d at 369. “In fact, and to the contrary, not only must there be a
written motion and reasonable notice for a trial court to disregard a
jury finding and/or render a judgment non obstante veredicto, the
written motion to disregard a jury finding must be directed to the
1 According to Hernandez’s calculations giving credit for his attributed
comparative negligence and for pre- and post-judgment interest, his judgment
should be in the amount of $1,012,462.04.
15
objectionable issue or issues and point out the reasons why such issues
should be disregarded.”). Id. The judgment entered here violated all
these principles, and respectfully, must be reversed.
In the alternative, even accepting solely for argument’s sake
King’s claim that the trial judge granted its motion for directed verdict
after submitting the case to the jury, receiving their verdict, and
discharging them, it is improper to grant such a motion after the jury
has returned a verdict. Allison, 156 S.W.2d at 528; Bradle, 83 S.W.3d at
927. Either way, the harm is the same: the loss of a substantial jury
verdict.
Regardless, the question of harm is irrelevant, because, in the
absence of a motion for JNOV and notice of a hearing on that motion,
the trial court had no jurisdiction to grant a JNOV, thereby making
that ruling void. Olin, 673 S.W.2d at 213–14 (holding that the trial
court “erred in overruling [a] motion for judgment on the verdict” and in
“sua sponte” granting a JNOV, “because it had no power to do so absent
a proper motion seeking such relief,” and recognizing that “Texas
appellate courts have uniformly construed the motion requirement of
Rule 301 to be jurisdictional”); 2 see also In re John G. & Marie Stella
2 All internal citations and quotations omitted unless otherwise noted.
16
Kenedy Mem'l Found., 315 S.W.3d 519, 522 (Tex. 2010) (orig.
proceeding) (holding that, in the absence of jurisdiction, a trial court’s
ruling is void).
According to King, Hernandez “has long been on notice of the
District Court’s intent to ‘carry’ the motion until after the jury returned
its verdict” and “[t]his was not the case of a trial court sua sponte
entering JNOV out of the clear blue.” Appellee’s Br. at 15. But the only
notice of intent Hernandez had was the same as King received: a JNOV
would have to be filed. 9 RR 28. And the “out of the blue” nature of this
ruling could not be clearer: the trial judge had twice denied King’s
motion for a directed verdict, had submitted the case to the jury and
received its verdict, and had told King it would need to file a motion for
JNOV, which King did not do. 9 RR 28. The only motion pending before
the trial court was Hernandez’s motion to enter a judgment on the
jury’s verdict, and, based on well-settled law, the court-appointed
special master recommended that the trial court sign a judgment on
that verdict. Therefore, although it was conceivable that the judge
might make some changes in the wording of the judgment Hernandez
proposed, it was inconceivable that the trial court would not grant a
17
judgment on the jury’s verdict but instead would grant a JNOV, which,
without a motion from King, was necessarily sua sponte.
King erroneously claims that Hernandez suffered no harm
because “the standard of review is the same” and Hernandez “would be
the appellant had the Court entered a directed verdict or JNOV.”
Appellee’s Br. at 15. But the trial court did not enter a directed verdict.
Id. Therefore, the only issue is whether the JNOV was proper. It was
not, because it lacked a motion to support it, Olin, 673 S.W.2d at 213–
14, and because King did not prove its affirmative defense as a matter
of law as it claims. Id. Instead, King created, at most, a fact issue for
the jury, which resolved that question against King. 5 CR 422.
King speculates that Hernandez “appears to assume that had
King filed a separate motion for JNOV, the District Court would have
denied it and ‘Hernandez would be the holder of a substantial
judgment.’” Appellee’s Br. at 15. But Hernandez does not assume
anything and King’s speculation misses the point: the trial judge had
already denied King’s motion for directed verdict and had submitted the
case to the jury, which returned a verdict. Therefore, the only way the
trial court could grant a JNOV would be if King filed a motion for JNOV
18
or if the jury’s answers were immaterial, neither of which is the case.
Olin, 673 S.W.2d at 213–14.
“There is no evidence,” says King, “the procedural posture—
motion for directed verdict carried over from trial or new motion for
JNOV—had any impact on the District Court’s decision.” Appellee’s Br.
at 16. If, by that, King means the trial court would have overturned the
jury’s verdict either way, that may be true; however, it is also true that,
either way, the harm is the same: the loss of a large jury verdict as a
result of the trial court’s erroneous ruling.
IV. The evidence did not prove as a matter of law that
Hernandez was King’s employee.
King asserts the trial court “correctly directed a verdict” in its
favor because it purportedly proved its “employee” defense “as a matter
of law,” Appellee’s Br. at 16, but it did not. That claim is incorrect on
both counts: (1) the court twice denied a requested directed verdict, and
(2) King did not prove its affirmative defense as a matter of law, at most
the evidence raised a fact issue, which the jury answered against King.
Section I, infra.
Even a directed verdict “is warranted only when the evidence
conclusively demonstrates that no other verdict could be rendered.”
Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex. 1985). “In determining
19
whether it was proper to instruct a verdict, the appellate court must
view the evidence in the light most favorable to the party against whom
the instructed verdict was granted, and every inference that may
properly be drawn from the evidence must be indulged against the
instruction.” State v. ADSS Properties, Inc., 878 S.W.2d 607, 614 (Tex.
App.—San Antonio 1994, writ denied) (citing White v. White, 172
S.W.2d 295, 296 (Tex. 1943)).
“If the record reflects any evidence of probative force in favor of
the party against whom the instruction was granted, the appellate
court must hold the instruction improper.” ADSS Properties, 878
S.W.2d at 614 (citing White, 172 S.W.2d at 296). “It is error to grant an
instructed verdict when evidence and reasonable inferences from the
evidence raise issues of fact. And, if an instructed verdict would not be
proper, it is error to grant judgment notwithstanding the verdict.”
ADSS Properties, 878 S.W.2d at 614.
King does not adhere to the legal-sufficiency standard of review it
cites. Appellee’s Br. at 17. Instead of viewing the evidence in the light
most favorable to the jury’s verdict, as required by case law, King
recites the evidence in a manner it deems most favorable to itself.
Bywaters, 686 S.W.2d at 595; White, 172 S.W2d at 296.
20
For example, King claims it “controlled all work performed at its
repair facility.” Appellee’s Br. at 16. But the evidence showed that King
did not control those details, or, at a minimum, this evidence created a
fact issue regarding that control. 5 RR 149, 185; 6 RR 137-38.
King also urges that Hernandez failed to follow King’s directions,
which caused his injuries. But by its own admission, King’s instructions
to Hernandez had nothing to do with the details, or even the
generalities, of how Hernandez was to do his work. King simply
provided safety guidelines to follow while performing that work. 6 RR
165-67, 180-81; 7 RR 34; 20 RR 6-8, 13-57. The same is true of King’s
furnishing some of the tools Hernandez used. Making tools available is
not the same as telling a worker how he must use those tools.
King’s claim that these safety guidelines constituted controlling
the details of Hernandez’ work, when weighed against the evidence that
ATG controlled those details, created a fact question for the jury,
thereby precluding a judgment in King’s favor as a matter of law.
According to King, it was “undisputed” that it “controlled both the
stepladder and the stand that [Hernandez’ was using when he hurt
himself” by not following King’s warning “not to put a ladder on those
stands.” Appellee’s Br. at 16. But, as Hernandez pointed out, “[i]t was a
21
common practice,” which everyone knew about. 5 RR 147. Furthermore,
furnishing equipment to use in performing a job does not equate to
controlling the details of how a worker accomplishes that job. The
evidence shows ATG, not King, exercised control over the details of that
job performance. 5 RR 149, 185; 6 RR 137-38. At an alternative
minimum, that evidence created a fact issue, which does not support a
judgment as a matter of law. St. Paul Fire & Marine Ins. Co. v.
Bjornson, 831 S.W.2d 366, 369 (Tex. App.—Tyler 1992, no writ).
King cites Wingfoot Enter. v. Alvarado for the proposition that
“[e]mployees may have more than one employer.” Appellee’s Br. at 18-19
(citing 111 S.W.3d 134, 135 (Tex. 2003)). Although in theory that may
be true in some cases, in fact it is not true here. Unlike Wingfoot, in
which there was no issue on appeal regarding whether the hiring
defendant controlled the details of that worker’s job, a factual dispute
existed here as to whether King had any such control. 111 S.W.3d at
139, 149.
The issue of whether the hiring defendant was an employer of the
plaintiff was not before the Court in Wingfoot, because the plaintiff did
not appeal the jury’s finding on that question, and, in fact, conceded
that he was an employee of the hiring defendant. 111 S.W.3d at 139.
22
The only question was “whether the exclusive remedy provision can
apply to both the general employer and one who has become an
employer by controlling the details of a worker's work at the time of
injury.” Id. Here, as in Wingfoot, a jury answered the fact question of
whether the plaintiff (Hernandez) was an employee of the hiring
defendant (King). 5 CR 422; 111 S.W.3d at 139. The only difference is
that the jury in Wingfoot resolved that factual dispute in favor of the
hiring defendant, whereas here they found in favor of the plaintiff
(Hernandez) against the hiring defendant (King). Id. That is because in
Wingfoot there was evidence that the plaintiff was injured while
working under “the direct supervision of [the] client company,” whereas,
there is no such evidence that Hernandez was working under King’s
“direct supervision.” Garza v. Exel Logistics, Inc., 161 S.W.3d 473, 475
(Tex. 2005) (citing Wingfoot, 111 S.W.3d at 143). In the alternative,
there was at least an evidentiary dispute on this point, which makes it
a question of fact for the jury, not a matter of law for the trial court.
King also claims that it has a contract giving it the right to control
the details of Hernandez’s work and that this “written contract
addressing the ‘right of control’ is determinative.” Appellee’s Br. at 19
(citing Robles v. Mount Franklin Food, L.L.C., 591 S.W.3d 158, 165
23
(Tex. App.—El Paso 2019, pet. denied)). But a factual dispute existed as
to whether King had any such contract with Hernandez, and the jury
resolved that question against King’s claim. 6 RR 132-33; 5 CR 422.
Furthermore, Robles recognized that even if a written contract
existed, it does not necessarily control. 591 S.W.3d at 165. For example,
assuming for hypothetical purposes that King had proven the existence
of the contract it claims it had with Hernandez, a fact question would
still exist as to whether the parties modified the contract by a
subsequent express or implied agreement. Id.; see also Newspapers, Inc.
v. Love, 380 S.W.2d 582, 590 (Tex. 1964) (holding that a written
contract may be modified “by a subsequent agreement expressed or
implied”). Furthermore, when, as here, “the terms of the employment
are indefinite,” evidence of the exercise of control “may be the best
evidence available to show the actual terms of the contract.” Love, 380
S.W.2d at 590.
King urges that Texas courts “construe the TWCA liberally in
favor of coverage as a means of affording employees the protections the
Legislature created.” Appellee’s Br. at 18 (quoting Port Elevator-
Brownsville, L.L.C. v. Casados, 358 S.W.3d 238, 241 (Tex. 2012)). But
King is trying to construe this Act to protect itself, not an employee.
24
Furthermore, Texas courts construe evidence liberally in favor of jury
verdicts to protect those verdicts and the litigants in whose favor the
jury ruled. See Jackson v. Axelrad, 221 S.W.3d 650, 653 (Tex. 2007)
(noting presumptions in favor of jury verdicts are designed to protect
verdicts from second-guessing on appeal). King is trying to construe
that evidence in the opposite manner as a means of undoing a verdict
this construction is intended to protect.
In similar fashion, King claims Texas appellate opinions are
“replete” with examples of temporary workers “being deemed the
employee or borrowed servant of the company where the employee was
working when he or she was injured.” Appellee’s Br. at 23. But, as set
forth above, Texas cases are also replete with examples of appellate
courts reversing trial judges for granting judgments as a matter of law
when fact questions existed and, in particular, for granting JNOVs
without supporting motions.
PRAYER
For the reasons cited in this brief and in Appellant’s opening
briefing, Appellant, Jorge Hernandez, respectfully asks this Court to:
• reverse the trial court’s judgment against Hernandez;
25
• render judgment in Hernandez’s favor in accordance
with the jury’s verdict and as requested in his motion
for entry of judgment;
• in the alternative, remand this case in part or in full
with instructions for the trial court to proceed in a
manner consistent with this Court’s opinion; and
• grant Hernandez all other relief to which he is entitled.
Respectfully submitted,
/s/ Catherine M. Stone
CATHERINE M. STONE
State Bar No. 19286000
cstone@langleybanack.com
OTTO S. GOOD
State Bar No. 08139600
ogood@langleybanack.com
RUBEN VALADEZ
State Bar No. 00797588
rvaladez@langelybanack.com
LANGLEY & BANACK, INC.
Trinity Plaza II, Suite 700
745 E. Mulberry Avenue
San Antonio, Texas 78212
Telephone: (210) 736-6600
Telecopier: (210) 735-6889
HUMBERTO S. ENRIQUEZ
State Bar No. 00784019
enriquezlawfirm@sbcglobal.net
THE ENRIQUEZ LAW FIRM, PLLC
1212 Montana Avenue
El Paso, Texas 79902
Telephone: 915.351.4331
Telecopier: 915.351.4339
ATTORNEYS FOR APPELLANT
JORGE L. HERNANDEZ
26
CERTIFICATE OF WORD COMPLIANCE
Appellant certifies that the number of words in this brief,
including its headings, footnotes, and quotations, is 5581.
/s/ Catherine M. Stone
CATHERINE M. STONE
CERTIFICATE OF SERVICE
I hereby certify that on March 15, 2021 a true and correct copy of
the foregoing instrument was served on the following counsel of record
in accordance with the Texas Rules of Appellate Procedure:
Bryan P. Rose James A. Daross
bryan.rose@stinson.com jdaross@darosslaw.com
STINSON LLP 4809 Costa de Oro Road
1050 17th Street, Suite 2400 El Paso, Texas 79922
Denver, CO 80265 Telephone: 915-549-7805
Telephone: 303-376-8415 Telecopier: 915-974-3912
/s/ Catherine M. Stone
CATHERINE M. STONE
27
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Teresa Rodriguez on behalf of Catherine Stone
Bar No. 19286000
trodriguez@langleybanack.com
Envelope ID: 51468790
Status as of 3/15/2021 11:49 AM MST
Associated Case Party: JorgeLHernandez
Name BarNumber Email TimestampSubmitted Status
Otto SGood ogood@langleybanack.com 3/15/2021 10:58:20 AM SENT
Catherine MStone cstone@langleybanack.com 3/15/2021 10:58:20 AM SENT
Teresa H.Rodriguez trodriguez@langleybanack.com 3/15/2021 10:58:20 AM SENT
Ruben Valadez rvaladez@langleybanack.com 3/15/2021 10:58:20 AM SENT
Humberto S. Enriquez enriquezlawfirm@sbcglobal.net 3/15/2021 10:58:20 AM SENT
Associated Case Party: King Aerospace
Name BarNumber Email TimestampSubmitted Status
James A. Daross 5391500 jdaross@darosslaw.com 3/15/2021 10:58:20 AM SENT
Bryan Rose 24044704 bryan.rose@stinson.com 3/15/2021 10:58:20 AM SENT
Faith Eaton featon@fbtlaw.com 3/15/2021 10:58:20 AM SENT
Benjamin West 24084074 bwest@fbtlaw.com 3/15/2021 10:58:20 AM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Emily Sylvia emily.sylvia@stinson.com 3/15/2021 10:58:20 AM SENT
Judith Araujo judith.araujo@stinson.com 3/15/2021 10:58:20 AM SENT
Ryan Sugden ryan.sugden@stinson.com 3/15/2021 10:58:20 AM SENT
Tayler Bradley tayler.bradley@stinson.com 3/15/2021 10:58:20 AM SENT