NO CV IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS

Transcription

1 NO CV IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS NORTH TEXAS TRUCKING, INC., VS. CARMEN LLERENA, On Appeal from the 116 th District Court of Dallas County, Texas Cause No F Appellant, Appellee. APPELLANT'S BRIEF BYRON K. HENRY State Bar Card No HILAREE A. CASADA State Bar Card No COWLES & THOMPSON, P.C. 91 Main Street, Suite 39 Dallas, TX 7522 (214) (214) (FAX) ROGER M. YALE State Bar Card No Attorney at Law 1512 McKinney Street, Suite 11 Denton, TX 7629 (94) (94) (FAX) ATTORNEYS FOR APPELLANT ORAL ARGUMENT REQUESTED

2 IDENTITY OF PARTIES AND COUNSEL Appellant: Counsel: North Texas Trucking, Inc. Byron K. Henry State Bar Card No Hilaree A. Casada State Bar Card No Cowles & Thompson, P.C. 91 Main Street, Suite 39 Dallas, TX 7522 (214) Telephone (214) Fax Roger M. Yale State Bar Card No Attorney at Law 1512 McKinney Street, Suite 11 Denton, TX 7629 (94) Telephone (94) Fax Appellee: Counsel: Carmen Llerena Domingo Garcia State Bar Card No Paul R. Hornung State Bar Card No Law Offices of Domingo Garcia, P.C. 4 S. Zang Blvd. 6 th Floor, Suite 6 Dallas, TX 7528 (214) Telephone (214) Fax i

3 TABLE OF CONTENTS Identity of Parties and Counsel... i Table of Contents... ii Index of Authorities... v Statement of the Case... ix Issues Presented... x I. The trial court erred by entering judgment against North Texas because there was legally insufficient evidence to support Llerena s negligence claim.... x II. III. IV. The trial court erred by entering judgment against North Texas because there was legally insufficient evidence to support Llerena s fraud claim.... x The trial court erred by entering judgment against North Texas because there was legally insufficient evidence to support the award of damages for future earnings.... x In the event the trial court erred by entering judgment on one of Llerena s claims, a new trial is required because the sole damage question relied on an invalid theory of liability.... x Statement of Facts... 1 I. Introduction... 1 II. Factual Background... 1 North Texas Trucking, Inc North Texas hires Llerena... 2 Llerena s job responsibilities... 2 Invoicing at North Texas... 3 The ACORD Certificates... 4 Llerena s Injury... 5 North Texas helps Llerena following the injury... 5 ii

4 Llerena s treatment... 6 Llerena abandons her job... 8 III. Procedural Background... 9 The Trial and Verdict... 9 Post-Judgment Motions... 1 Summary of the Argument Argument and Authorities I. The trial court erred by entering judgment against North Texas because there was legally insufficient evidence to support Llerena s negligence claim A. Standard of Review B. Applicable Law C. Analysis II. The trial court erred by entering judgment against North Texas because there was legally insufficient evidence to support Llerena s fraud claim A. Standard of Review B. Applicable Law C. Analysis III. The trial court erred by entering judgment against North Texas because there was legally insufficient evidence to support the award of damages for future earnings A. Standard of Review B. Applicable Law C. Analysis IV. In the event the trial court erred by entering judgment on one of Llerena s claims, a new trial is required because the damage question was based on an invalid theory of liability iii

5 A. Standard of Review B. Applicable Law C. Analysis Conclusion Prayer Certificate of Service Index to Appendix iv

6 INDEX OF AUTHORITIES CASES Allen v. A & T Transp. Co., 79 S.W.3d 65 (Tex. App. Texarkana 22, pet. denied)... 14, 15 Amrhein v. La Madeleine, Inc., No CV, 29 Tex. App. LEXIS 57 (Tex. App. Dallas June 3, 29, pet. denied)... 14, 15, 16, 2 Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925 (Tex. 1993) Capital Metro. Transp. Auth. v. Cent. of Tenn. Ry. and Nav. Co., Inc., 114 S.W.3d 573 (Tex. App. Austin 23, pet. denied) Caterpillar, Inc. v. Shears, 911 S.W.2d 379 (Tex. 1995)... 2 City of Keller v. Wilson, 168 S.W.3d 82 (Tex. 25) City of San Antonio v. Pollock, 248 S.W.3d 89 (Tex. 29) CMH Homes, Inc. v. Daenen, 15 S.W.3d 97 (Tex. 2) Croucher v. Croucher, 66 S.W.2d 55 (Tex. 1983) Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378 (Tex. 2)... 31, 32 Dick s Last Resort of W. End, Inc. v. Mkt./Ross, Ltd., 273 S.W.3d 95 (Tex. App Dallas 28, pet. denied) Doe v. Boys Clubs of Greater Dallas, Inc., 97 S.W.2d 472 (Tex. 1995) Excel Corp. v. Apodaca, 81 S.W.3d 817 (Tex. 22)... passim Farley v. M M Cattle Co., 529 S.W.2d 751 (Tex. 1975)... 18, 2 v

7 Ford Motor Co. v. Ledesma, 242 S.W.3d 32 (Tex. 27) Formosa Plastics Corp. v. Presidio Eng rs & Contractors, Inc., 96 S.W.2d 41 (Tex. 1998) Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757 (Tex. 23)... 29, 3 Harris County v. Smith, 96 S.W.3d 23 (Tex. 22)... 31, 32 Jack in the Box, Inc. v. Skiles, 221 S.W.3d 566 (Tex. 27)... 2 Kroger Co. v. Elwood, 197 S.W.3d 793 (Tex. 26)... 14, 15, 2 Leitch v. Hornsby, 935 S.W.2d 114 (Tex. 1996) LMB, Ltd. v. Moreno, 21 S.W.3d 686 (Tex. 26)... 18, 21 Marathon Corp. v. Pitzner, 16 S.W.3d 724 (Tex. 23) Maritime Overseas Corp. v. Ellis, 971 S.W.2d 42 (Tex. 1998) McKinney Indep. Sch. Dist. v. Carlisle Grace, Ltd., 222 S.W.3d 878 (Tex. App. Dallas 27, pet. denied) Melendrez v. Tuesday Morning, Inc., No CV, 21 Tex. App. LEXIS 3956 (Tex. App. Dallas June 14, 21, no pet.)... 21, 23, 24 Patino v. Complete Tire, Inc., 158 S.W.3d 655 (Tex. App. Dallas 25, pet. denied)... 14, 15, 16, 21 Pilgrim s Pride Corp. v. Smoak, 134 S.W.3d 88 (Tex. App. Texarkana 24, pet. denied) Plainview Motels, Inc. v. Reynolds, 127 S.W.3d 21 (Tex. App. Tyler 23, pet. denied)... 29, 3 vi

8 Price Drilling Co. v. Zertuche, 147 S.W.3d 483 (Tex. App. San Antonio 24, no pet) Prospect High Income Fund, ML CBO IV v. Grant Thornton, LLP, 23 S.W.3d 62 (Tex. App. Dallas 26, pet. denied) Ramos v. Frito-Lay, Inc., 784 S.W.2d 667 (Tex. 199) Repub. Waste Serv. v. Martinez, No CV, 211 Tex. App. LEXIS 54 (Tex. App. Houston 1st Dist.] Jan. 2, 211, no pet. h.)... 3 Royal Macabees Life Ins. Co. v. James, 146 S.W.3d 34 (Tex. App. Dallas 24, pet. denied)... 31, 32, 33 Saenz v. Fid. & Guar. Ins. Underwriters, 925 S.W.2d 67 (Tex. 1996)... 3 Schrock v. Sisco, 229 S.W.3d 392 (Tex. App. Eastland 27, no pet.)... 32, 33, 34 Southwestern Bell Tel. Co. v. Delanney, 89 S.W.2d 493 (Tex. 1991) Springer v. Baggs, 5 S.W.2d (Tex. App. Texarkana 1973, writ ref d n.r.e.)... 3 TCA Bldg. Co. v. Entech, Inc., 86 S.W.3d 667 (Tex. App. Austin 22, no pet.) Texas Integrated Conveyor Systems, Inc. v. Innovative Conveyor Concepts, Inc., 3 S.W.3d 348 (Tex. App. Dallas 29, pet. denied) U-Haul Int l, Inc. v. Waldrip, 322 S.W.3d 821 (Tex. App. Dallas 21, pet. filed) Van Horn v. Chambers, 97 S.W.2d 542 (Tex. 1998) Walker v. Cotter Props., Inc., 181 S.W.3d 895 (Tex. App. Dallas 26, no pet.) Wil-Roye Inv. Co. II v. Wash. Mut. Bank, F.A., 142 S.W. 393 (Tex. App. El Paso 24, no pet.) vii

9 Wilkins v. Royal Indem. Co., 592 S.W.2d 64 (Tex. Civ. App. Tyler 1979, no writ)... 3 Zook v. Brookshire Grocery Co., 32 S.W.3d 452 (Tex. App. Dallas 29, no pet.) RULES AND STATUTES Chapter 411 of the Texas Labor Code TEX. R. APP. P. 44.1(a) TEX. R. APP. P. 44.1(b) OTHER AUTHORITIES TEX. PATTERN JURY CHARGES: General Negligence Intentional Personal Torts 8.2 (28) TEX. PATTERN JURY CHARGES: Business Consumer Insurance Employment (28) TEX. PATTERN JURY CHARGES: Business Consumer Insurance Employment (28) viii

10 STATEMENT OF THE CASE Trial Court: Nature of the Case: Course of Proceedings: Disposition: 116 th District Court, Dallas County, Texas; Honorable Bruce Priddy, Former Presiding Judge. This is a personal injury suit for damages suffered as a result of an alleged work-related injury. This appeal is from a final judgment entered on a jury s verdict in Appellee s favor. Appellee Carmen Llerena brought suit against Appellant North Texas Trucking, Inc. for damages suffered as a result of an alleged work-related injury. (CR 9-24). 1 The case was tried to a jury which rendered a verdict in Appellee s favor. (Apx. Tab 2). 2 The trial court entered judgment on the verdict and Appellant appealed. (CR 51-53, ; Apx. Tab 1). The trial court entered a final judgment in favor of Appellee and against Appellant for damages in the amount of $415,231.58, along with pre and post judgment interest and costs of court. (CR 51-53; Apx. Tab 1). 1 North Texas will refer to the one-volume Clerk s Record as CR. North Texas will refer to the eight-volume Reporter s Record as RR and will cite to it by volume and page number. For example, page one of volume one will be cited as (1 RR 1). Plaintiff s exhibits will be referred to as Plf. Ex. and Defendant s exhibits will be referred to as Def. Ex. 2 North Texas will refer to the Appendix to this brief as Apx. and will cite to it by tab number. ix

11 ISSUES PRESENTED I. The trial court erred by entering judgment against North Texas because there was legally insufficient evidence to support Llerena s negligence claim. II. III. IV. The trial court erred by entering judgment against North Texas because there was legally insufficient evidence to support Llerena s fraud claim. The trial court erred by entering judgment against North Texas because there was legally insufficient evidence to support the award of damages for future earnings. In the event the trial court erred by entering judgment on one of Llerena s claims, a new trial is required because the sole damage question relied on an invalid theory of liability. x

12 STATEMENT OF FACTS I. Introduction Carmen Llerena ( Llerena ) worked for North Texas Trucking, Inc. ( North Texas ) for four years as a bookkeeper and secretary. (3 RR 172, 19, 198; 4 RR 47; Plf. Ex. 14). In August 26, Llerena suffered an injury that was diagnosed as carpal tunnel syndrome. (3 RR 117, 124, 141, 182, 183; 4 RR 58-59, 63-64, 121; Plf. Exs. 21, 25). North Texas allowed her to work light duty following the injury, and continued to pay Llerena following two surgeries. (3 RR ; 4 RR 63-64). However, Llerena never returned to work, did not notify North Texas of her recovery status, and did not provide doctor s excuses for nearly five months of absences. (3 RR ; 4 RR ) North Texas terminated Llerena on March 2, 27 due to job abandonment. (Def. Ex. 14; 4 RR 115). Llerena then sued North Texas for negligence and fraud and obtained a favorable judgment following a jury trial. (CR 9-24, 51-53). The following provides the Court with the background facts and procedural history relevant to the issues on appeal. II. Factual Background North Texas Trucking, Inc. North Texas is a short haul transport company owned by David Davila, Sr. ( Davila ). (3 RR 167, ). North Texas s business focuses on transporting loads for construction projects. (3 RR , 231, 232). North Texas is hired for these jobs by construction companies, general contractors, and public authorities, like airports, highways, cities, and counties. (3 RR 46). North Texas owns some trucks but also hires 1

13 independent owner/operators to use their own trucks to haul loads for certain jobs. (3 RR 188, 19). North Texas pays those contractors and North Texas s employee drivers on a weekly basis before receiving payment for those services. (3 RR 31, 32). North Texas then submits invoices to the contractor or government entity that hired North Texas to handle the job. (3 RR 31, 175, 177). North Texas hires Llerena Llerena worked for Davila in (3 RR 169; 4 RR 32). Davila learned sometime in the early 2 s that Llerena was back in Dallas. (3 RR 169). Davila contacted Llerena with the intention of offering her a job. (3 RR ). Davila and Llerena met for lunch, and Davila learned at the lunch that Llerena had earned degrees in accounting and management, as well as several certificates. (3 RR ). Davila offered Llerena a position with North Texas as the office manager. (3 RR ). She eventually accepted the job and began working at North Texas as an at-will employee in July 22. (4 RR 47). Llerena was paid $65.47 (net) per week or $33, annually. (4 RR 81; Plf. Ex. 33). Llerena testified that Davila told her that the job included several benefits, including workers compensation insurance. (4 RR 31, 145). Davila testified that Llerena never asked him if North Texas had workers compensation insurance. (3 RR 41). Llerena s job responsibilities Llerena was hired to be North Texas s full time office manager. (3 RR 172). As office manager, she handled North Texas s bookkeeping as well as secretarial duties. (3 RR 198; 4 RR 35-37). Davila relied on Llerena to run the office. (3 RR 19). At trial, 2

14 Llerena denied being the officer manager. (4 RR 56, 124). Rather, she testified that she was the bookkeeper and secretary. (4 RR 35). Regardless, it is undisputed that Llerena s general bookkeeping duties included balancing North Texas s books, writing checks to contractors, notifying Davila of account balances and transfer needs, and preparing invoices for accounts receivable. (4 RR 35-36). Invoicing at North Texas North Texas processes invoices on a weekly basis each week North Texas has a job. (3 RR 31). On Saturday mornings, Davila collects the work tickets from the drivers and pays them for the work completed the previous week. (3 RR 31, 32). On Monday mornings, Davila processes all the drivers tickets by separating the tickets by jobs, by companies, and by categories of materials hauled by the hour, by load, or by tonnage. (3 RR 31, 173, 177). During Llerena s employment, Davila would then put instructions on the last ticket of the stack telling Llerena what to write in the invoices as to location, company name, and price. (3 RR 174). Llerena would then type that information into QuickBooks and make an invoice to send to the company that hired North Texas. (3 RR 31, 175, 177; Def. Ex. 12; Apx. Tab 3). Llerena testified that Davila required all invoices to be finished on Monday. (4 RR 39). Davila disagreed, testifying that the intent was to finish all invoices by Wednesday each week because contractors usually process invoices on Thursdays. (3 RR 32, 177, ). Davila also noted that sometimes tickets were missed or could not be collected on Saturday and, thus, could not be processed on Monday. (3 RR 32, 173). 3

15 The volume of tickets varied from day to day, as did the amount of information to be included on each invoice. (3 RR 174, 185; 4 RR 41, 43, 12). Some invoices had only one line of information, while others comprised multiple pages. (4 RR 41, ; Plf. Ex. 35; Def. Ex. 12; Apx. Tab 3). Llerena did not handle the invoicing alone. (3 RR 173, 185). Rather, others helped her prepare the invoices each week, including the week she reported her injury. (3 RR 173, 185; 4 RR ). The ACORD Certificates When North Texas bids on jobs, it is often required to provide the hiring contractor with an ACORD certificate showing what insurance North Texas would provide if it wins the bid. (3 RR 222; 4 RR 14-15, 17-18; Plf. Exs. 4-9; Apx. Tab 4). Llerena sometimes received these certificates from North Texas s insurance broker and would forward the certificate to the general contractor. (4 RR 57, 144). The ACORD certificates list the types and levels of insurance that North Texas would obtain in the event North Texas gets the job. (3 RR , ; 4 RR 14-15; Plf. Ex. 4-9). The companies receiving the certificates understand that North Texas may or may not have those particular policies in place when the certificate is provided in the bid, but that North Texas agrees to obtain the coverage if North Texas wins the bid and gets the job. (3 RR ; 4 RR 14-15, 17-18). It is undisputed that the ACORD certificates were not intended to provide any information to Llerena, nor were they produced in order to induce Llerena s reliance or action. (4 RR 144). Rather, they were simply intended to tell contractors what insurance North Texas could obtain if North Texas is given a job. (3 RR ; 4 RR 14-15, 17-4

16 18). Llerena did not rely on the insurance certificates personally. (4 RR 143). She agreed that she was not requesting the certificates for her own personal use, that the certificates were not sent to her for her personal use, that she did not need the insurance certificates for personal use, and that the State and the contractors were the only parties to rely on the certificates. (4 RR ). Llerena s Injury Llerena reported an injury at work on August 7, 26. (4 RR 64, 121). Davila was in Mexico at the time of the injury. (3 RR 4, 182; 4 RR 56, 121). However, when Llerena notified Davila of the injury, he told her to get whatever medical treatment she needed. (3 RR 4, 183). At that time, Davila told Llerena that North Texas did not have workers compensation insurance. (3 RR 41). Llerena claims that Davila did not tell her about the lack of workers compensation insurance until after he returned to Dallas at the end of August 26, and that he asked her to stop treatment until after he could put a workers compensation policy into place. (4 RR 58, 6). Davila denied those allegations. (3 RR 41, 78, 79). North Texas helps Llerena following the injury When Llerena told Davila that she could no longer perform her job duties but still needed an income, Davila suggested Llerena work light duty by coming to the office and doing whatever work she could do, such as answering the phones. (3 RR 41; 4 RR 63). She remained on light duty until her first surgery, which occurred November 1, 26. (4 RR 63-64). Llerena never returned to work following the first surgery. (3 RR 186). 5

17 North Texas paid Llerena her full salary while she was on light duty and continued to pay Llerena the full salary after her first surgery even though she did not return to work. (3 RR 74, 186, 187). Davila testified he continued to pay Llerena because it was one of the compensations that she that I thought that she deserved for being a good employee. (3 RR 74). After Llerena had missed two months of work following her first surgery, however, North Texas reduced her compensation from $65 per week to 6% of her salary ($45.5 per week). (3 RR 44-45, 187). Although North Texas did not carry workers compensation insurance, North Texas paid Llerena these reduced benefits as workers compensation. (3 RR 44-45, 75). That reduced pay continued until she was terminated in March 27. (Def. Ex. 14). Llerena s treatment Llerena had two surgeries to correct the carpal tunnel syndrome. (4 RR 63-64, 128). The first surgery, on her right hand, occurred on November 1, 26 and the second surgery, on her left hand, occurred on December 8, 26. (4 RR 63-64, 128). Dr. Robert D. Wilcox was the orthopedic surgeon who performed the surgeries. (3 RR 155; 8 RR Plf. Ex. 15). Thirteen days after the first surgery, Dr. Wilcox s reports show that Llerena was doing fine, had zero pain, and was ready to have surgery on her left hand. (Plf. Ex. 15; Apx. Tab 6; 3 RR ). Seven weeks after the second surgery, Dr. Wilcox noted that she was healing very well, she suffers only mild discomfort, the numbness and tingling had resolved, and she should continue her physical therapy with Dr. Olivares. (8 RR Plf. Ex. 15; Apx. Tab 6; 3 RR ). 6

18 Dr. Olivares, a chiropractor, provided physical therapy to Llerena before and after the surgeries. (3 RR 85, 95; 8 RR Plf. Ex. 21). Dr. Olivares treated Llerena between August 1, 26 and May 22, 27. (8 RR Plf. Ex. 21). His Final Narrative, which is dated May 22, 27, includes the following critical findings: Hand problems are rated occasional and mild by Llerena The right wrist and hand pain had improved significantly The left wrist and hand pain had been reduced to occasional and mild and had improved significantly Llerena had completed all recommended treatment that would result in significant improvement Dr. Olivares advised that Llerena should seek a new vocation or vocational training (8 RR Plf. Ex. 21; Apx. Tab 7). Dr. Olivares confirmed these findings at trial. (3 RR , , 163). He further testified that carpal tunnel syndrome can be of unknown cause (i.e., idiopathic), but that it was his opinion that Llerena s injury was caused by the repetitive trauma resulting from typing and the use of her hands at work. (3 RR 118, 141, 151). Dr. Olivares based this assessment on the information Llerena told him regarding the temporal connection between Llerena s typing at work and the injury. (3 RR 124). Dr. Olivares did not observe Llerena in her work environment. (3 RR 124). Although Dr. Olivares recommended that Llerena find a new vocation because he did not want Llerena 7

19 using the 1-key and keyboards any more, there is no evidence that Llerena could not work at all. (3 RR 163). 3 Llerena abandons her job Although Davila wanted to compensate Llerena until she could return to work, Llerena failed to keep North Texas informed of her status and medical condition. (3 RR 74, ; 4 RR ). After the first surgery, Llerena did not return to work at North Texas, did not send any doctor s excuses to North Texas, and did not notify North Texas of whether and when she intended to return to work. (3 RR ; 4 RR , 128). Llerena s only contacts with North Texas following the surgery were several calls Llerena made to Danny de la Cruz of North Texas regarding the status of her checks, some calls to Llerena from Cruz seeking computer passwords and other information needed to run North Texas s computer programs, and possibly one call with Julio Cesar Davila about Llerena s check. (3 RR 188; 4 RR 17, , 128, 147, , 165). By failing to return to work and failing to notify North Texas of her status, North Texas determined that Llerena had abandoned her job. (3 RR 74-77, 187; Def. Ex. 3 The record includes a letter from Dr. Olivares dated May 8, 28 stating that Llerena was not able to return to work at the time of her release. (Plf. Ex. 21; Apx. Tab 7). However, Dr. Olivares wrote that letter without examining Llerena almost a year after he had released Llerena from his care. (3 RR 149). Moreover, that letter does not state that Llerena is unable to perform any job. On the contrary, Dr. Olivares counseled Llerena to find another job, and her ability to carry out her activities of daily living and ability to type for a few minutes at a time illustrate that she could certainly obtain work somewhere. (3 RR 163; Apx. Tab 7). Indeed, surveillance footage taken between December 28 and December 29 confirms that Llerena was able to perform many daily activities, including driving, washing her dogs, performing yard work, caring for her elderly mother, and gardening. (5 RR 23-32). 8

20 14). On March 2, 27, North Texas counsel sent Llerena a formal letter of termination based on job abandonment. (Def. Ex. 14). III. Procedural Background In January 28, Llerena filed suit against North Texas and North Texas s insurance broker. 4 (CR 4). Llerena asserted negligence and a fraud claims among others, against North Texas. (CR 144). Llerena claimed that she incurred a repetitive stress injury (i.e., carpal tunnel syndrome) doing North Texas s weekly invoice work. (4 RR 63-64). She also claimed that North Texas should have provided her an ergonomically safe work station and that North Texas s failure to do so proximately caused her injury and damages. (4 RR ). Those allegations formed the basis of her negligence claim. (4 RR ). Llerena also alleged that North Texas committed fraud against her by (1) telling Llerena she would have workers compensation benefits if she took the job, and (2) allowing her to see the ACORD certificates, which indicated to her that North Texas had workers compensation insurance in place. (CR 13; 4 RR ) The Trial and Verdict This case was tried to a jury beginning on April 27, 21. (1 RR 1; CR 51). The Court submitted questions to the jury on negligence, fraud, and conspiracy. (CR 27-36). Over Defendants objections, the Court submitted a single damages question. (CR 34; 6 RR 5, 6, 7). The jury found the following: (1) North Texas s negligence proximately caused the occurrence in question (Question One); 4 The claims against the broker are not at issue on appeal. 9

21 (2) North Texas committed a fraud on Llerena by making a material misrepresentation (Question Two); (3) North Texas and Ronnie Mabra did not form a civil conspiracy to perpetuate a fraud on Llerena (Question Three); and (4) The following damages resulted from the occurrence in question: $31, in past medical care expenses; $2, in past lost earnings and employee benefits; $331,739 in future lost earnings and employee benefits; and $5, in past compensatory damages. (CR 27-36). Llerena submitted a Motion for Judgment and a proposed final judgment to the Court, and North Texas filed a response to the motion and objections to the proposed final judgment. (CR 37-5). The Court sustained two of North Texas s objections to the proposed final judgment, but denied North Texas s request that the judgment reflect an election of remedies by Llerena. (7 RR 18). The Court signed a final judgment on the verdict on June 9, 21. (CR 51-53). The Final Judgment awards Llerena all of the damages found by the jury as well as prejudgment interest, post-judgment interest, and costs. (CR 52-53). Post-Judgment Motions North Texas filed a Motion for Judgment Notwithstanding the Verdict, a Motion to Modify the Judgment, and a Motion for New Trial. (CR 63-88). The Court denied those motions and this appeal followed. (CR 98, ). Enforcement of the judgment is currently suspended by a cash deposit filed in lieu of supersedeas bond on August 23, 21. (CR 99). 1

22 SUMMARY OF THE ARGUMENT The trial court erred by entering judgment for Llerena because there was legally insufficient evidence to support her negligence claim. Specifically, there was no evidence that North Texas breached a duty or that any breach proximately caused her injuries. It is well-settled that a plaintiff must present evidence that a defendant breached a recognized legal duty to the plaintiff in order to be held liable for negligence. Here, the only evidence was that Llerena s injury may have been work-related. But it is not sufficient for a plaintiff to prove she was injured at work. Llerena was required to present evidence that North Texas breached a duty that proximately caused her injury. Llerena failed to do so. Even if North Texas breached a duty to Llerena by requiring her to perform her usual job functions, there was no evidence that the alleged breached proximately caused her damages. Without evidence that she would not have suffered the injury had North Texas taken some precaution or provided other equipment, Llerena cannot demonstrate proximate cause. Thus, the trial court erred by entering judgment on Llerena s negligence claim. Likewise, there is legally insufficient evidence to support Llerena s fraud claim. Specifically, there was no evidence adduced at trial on the elements of reliance or proximate cause. At trial, Llerena alleged that North Texas s misrepresented that it had workers compensation insurance. But Llerena did not testify that she relied on that representation when taking the job, or that she would not have taken the job had she known North Texas did not have workers compensation insurance. 11

23 Assuming there was legally sufficient evidence of reliance, there is no evidence that the alleged misrepresentation proximately caused Llerena any damages. If North Texas committed fraud, the damages would be the amount Llerena would have received in workers compensation benefits. In other words, any misrepresentation regarding specific benefits would only entitle her to those benefits. It is unclear how the jury arrived at its award. In any event, there was no evidence on which it could have relied in determining the amount of future earnings. The trial court also erred because there was legally insufficient evidence to support the judgment for lost earnings in the future. Specifically, Llerena was only entitled to recover lost earning capacity, not lost earnings. Regardless, Llerena was only allowed to recover earnings lost as a result of the injury. There was no evidence that Llerena was unable to return to work, the amount that would have been paid by workers compensation, if any, the level of her disability, or how much her ability to work had been diminished. The only evidence was the wages she earned prior to the injury. This is no evidence of the amount of earnings lost in the future. Finally, in the event the Court determines there is legally sufficient evidence to support either the negligence or fraud finding, but not both, the Court should reverse the judgment and order a new trial because it is impossible to ascertain whether the jury awarded damages were based on a valid or invalid theory of liability, thus preventing North Texas from isolating the error and presenting its case on appeal. Because the jury found fraud and negligence, and there was legally insufficient evidence to support at 12

24 least one of those claims, the judgment must be reversed and the case remanded for a new trial. ARGUMENT AND AUTHORITIES I. The trial court erred by entering judgment against North Texas because there was legally insufficient evidence to support Llerena s negligence claim. A. Standard of Review When an appellant attacks the legal sufficiency of an adverse finding on an issue on which it did not have the burden of proof, the appellant must demonstrate there is no evidence to support the adverse finding. McKinney Indep. Sch. Dist. v. Carlisle Grace, Ltd., 222 S.W.3d 878, (Tex. App. Dallas 27, pet. denied) (citing Croucher v. Croucher, 66 S.W.2d 55, 58 (Tex. 1983)). In reviewing the record for legal sufficiency, the court considers the evidence in the light most favorable to the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Id. at 882 (quoting City of Keller v. Wilson, 168 S.W.3d 82, 87 (Tex. 25)). Evidence that is less than a scintilla is legally insufficient. Id. More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about the existence of a vital fact. Walker v. Cotter Props., Inc., 181 S.W.3d 895, 899 (Tex. App. Dallas 26, no pet.). If the evidence would enable reasonable and fair-minded jurors to differ in their conclusions, the evidence is legally sufficient. McKinney ISD, 222 S.W.3d at 822. But evidence that is mere suspicion or surmise is no evidence. See Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex. 1993); Capital Metro. Transp. Auth. v. Cent. of Tenn. Ry. and 13

25 Nav. Co., Inc., 114 S.W.3d 573, 578 (Tex. App. Austin 23, pet. denied). The jury is the sole judge of the credibility of the witness and evidence and the Court should not substitute its judgment for the fact finder s, even if the Court would reach a different answer on the evidence. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 42, 47 (Tex. 1998). B. Applicable Law The elements of a negligence cause of action are: (1) the defendant owed a particular duty to the plaintiff; (2) the defendant breached that duty by failing to adhere to a recognized standard of care; and (3) the breach of duty proximately caused the plaintiff injury. 5 Van Horn v. Chambers, 97 S.W.2d 542, 544 (Tex. 1998). 1. Duty An employer has several duties to its employees including a duty to adequately hire, train, and supervise employees. Allen v. A & T Transp. Co., 79 S.W.3d 65, 7 (Tex. App. Texarkana 22, pet. denied). Although an employer is not an insurer of its employees safety at work, it has a duty to use ordinary care in providing a safe workplace. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 26). This duty includes providing rules and regulations for the safety of employees, warning employees of the hazards of their employment, and supervising their activities. Amrhein v. La Madeleine, Inc., No CV, 29 Tex. App. LEXIS 57, at *15 (Tex. App. Dallas June 5 It is undisputed that North Texas is a workers compensation non-subscriber. Thus, Llerena was required to prove that North Texas was negligent. Patino v. Complete Tire, Inc., 158 S.W.3d 655, 659 (Tex. App. Dallas 25, pet. denied). 14

26 3, 29, pet. denied) (citing Patino v. Complete Tire, Inc., 158 S.W.3d 655, 66 (Tex. App. Dallas 25, pet. denied)). An employer must to instruct employees in the safe use and handling of products and equipment used in and around an employer s premises or facilities. Id. at *14-15; Allen, 79 S.W.3d at 7. However, an employer has no duty to adopt safety rules where its business is neither complex nor hazardous, or where the dangers incident to the work are obvious or are of common knowledge and fully understood by the employee. Patino, 158 S.W.3d at 66. The duty to warn or caution an employee of a danger arises when: (a) the employment is of a dangerous character requiring skill and caution for its safe and proper discharge, and (b) the employer is aware of the danger and has reason to know the employee is unaware of the danger. Amrhein, 29 Tex. App. LEXIS 57, at *15 (citing Patino, 158 S.W.3d and Allen, 79 S.W.3d at 7). When an employee s injury results from performing the same character of work that employees in that position have always done, an employer is not liable if there is no evidence that the work is unusually precarious. Id. at *15-16 (citing Elwood, 197 S.W.3d at 795 and Patino, 158 S.W.3d at 66). 2. Proximate Cause Proximate cause comprises two elements: cause in fact and foreseeability. Excel Corp. v. Apodaca, 81 S.W.3d 817, 82 (Tex. 22). The test for cause in fact, or but for cause, is whether the act or omission was a substantial factor in causing the injury without which the harm would not have occurred. Id. (quoting Doe v. Boys Clubs of Greater Dallas, Inc., 97 S.W.2d 472, 477 (Tex. 1995)). In other words, the plaintiff 15

27 must present evidence that she would not have been injured if the defendant had done something different. Patino, 158 S.W.3d at (citing Apodaca, 81 S.W.3d at 82). C. Analysis 1. Breach of Duty In this case, Llerena alleged North Texas allegedly breached several duties leading to Llerena s injuries. North Texas addresses each in turn. a. Duty to train and supervise Llerena alleged that North Texas breached the duty to properly train and supervise its employees. (CR 12). 6 No evidence, however, was adduced as to how Llerena was trained, how the training was lacking, or what training North Texas should have provided in order to meet a reasonable standard of case. Therefore, the evidence is legally insufficient to support a judgment for negligence based on North Texas s failure to train or supervise Llerena. Amrhein, 29 Tex. App. LEXIS 57, at *16-17 (plaintiff produced no evidence that training and supervision beyond that given by defendant] would be necessary or proper by a reasonably prudent employer. ). b. Failure to inspect or warn Llerena also alleged that a dangerous condition existed on the premises and that North Texas failed to inspect, warn, or correct the dangerous condition. (CR 12). 7 This duty is an element of a premises liability claim. See Zook v. Brookshire Grocery Co., 32 S.W.3d 452, 455 (Tex. App. Dallas 29, no pet.). Llerena is not entitled to recover on 6 Plaintiff s Second Amended Petition at 3-4, VII.A. 7 Plaintiff s Second Amended Petition at 3-4, VII.B, C, F & G. 16

28 a premises liability theory for two reasons. First, negligence and premises liability are distinct claims and the jury must be instructed on the elements of premises liability in order for a plaintiff to recover thereon. See City of San Antonio v. Pollock, 248 S.W.3d 89, 83 (Tex. 29) ( A premises liability case requires that the jury be instructed on the elements of the landowner s duty and thus the distinction between general negligence and premises liability remains important in Texas. ). Llerena failed to submit a question to the jury on a premises liability theory. (6 RR 4). Further, Llerena did not object to the omission from the charge of a question or instruction on premises liability. (6 RR 4). Llerena had the burden to obtain affirmative answers to jury questions as to the necessary elements of his cause of action. Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 44 (Tex. 27) (quoting Ramos v. Frito-Lay, Inc., 784 S.W.2d 667, 668 (Tex. 199)). By failing to submit a premises liability question to the jury or object to the charge, Llerena waived any claim based on premises liability. See Southwestern Bell Tel. Co. v. Delanney, 89 S.W.2d 493, 495 (Tex. 1991); see also Price Drilling Co. v. Zertuche, 147 S.W.3d 483, 488 (Tex. App. San Antonio 24, no pet) (reversing judgment based on negligence when claim was for premises liability and plaintiff failed to object to court s refusal to submit premises liability question to the jury). Second, judgment for Llerena on a premises liability theory was error because there is legally insufficient evidence on at least one element of the claim. In order to recover on a premises liability theory, i.e., failure to inspect or warn of an unreasonably dangerous condition, Llerena was required to prove that (1) North Texas had actual or constructive knowledge of some condition on the premises, (2) the condition posed an 17

29 unreasonable risk of harm, (3) North Texas did not exercise reasonable care to reduce or eliminate the unreasonable risk of harm, and (4) North Texas s failure to use reasonable care to reduce or eliminate the unreasonable risk of harm proximately caused Llerena s injuries. See LMB, Ltd. v. Moreno, 21 S.W.3d 686, 688 (Tex. 26) (citing CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2)). Llerena presented no evidence at trial that an unreasonably dangerous condition existed, let alone that North Texas had actual or constructive knowledge of any such condition. In fact, Davila testified that he had not even heard the phrase carpal tunnel syndrome before Llerena got hurt, and that he did not know Llerena was having pain until she called him in Mexico in August 26. (3 RR 38-4). Further, there was no evidence admitted at trial that North Texas failed to use reasonable care to reduce or eliminate the condition. As discussed in detail below, there was no evidence of any steps North Texas could have taken to eliminate any unreasonably dangerous condition, or otherwise prevent Llerena s injury. As a result, the trial court erred by entering judgment on the jury s finding to the extent the finding was based on Llerena s premises liability allegations. c. Ordinary care and reckless disregard Llerena also alleges that North Texas failed to use ordinary care and recklessly disregarded the safety and welfare of its employees. (CR 12). 8 These duties are 8 Plaintiff s Second Amended Petition at 3-4, VII.E, I & J. North Texas assumes Llerena is referring to an employer s non-delegable duties to employees recognized by the Texas Supreme Court in Farley v. M M Cattle Co., 529 S.W.2d 751, 754 (Tex. 1975) ( It is well established that an employer has certain nondelegable and continuous duties to his employees. 18

30 subsumed in the duty to provide a safe workplace and safe equipment discussed below. Regardless of Llerena s framing of the duties, Llerena was still required to demonstrate that but for North Texas s conduct, she would not have been injured. No evidence was admitted that any of the equipment was unsafe or dangerous, or that the work Llerena performed was unreasonably dangerous. Thus, Llerena cannot recover for negligence under the alleged reckless disregard for employee safety. d. Safety program Llerena also claims that North Texas was negligent by failing to implement a safety program pursuant to Chapter 411 of the Texas Labor Code. (CR 12). 9 North Texas is unable to locate or ascertain any such requirement or its parameters. Further, portions of Chapter 411 were repealed effective September 1, 25. Llerena filed this case in 27. Thus, to the extent Llerena relied, and the verdict was predicated, on repealed provisions of the Labor Code, such finding was error. As a result, there is legally insufficient evidence to support a judgment for negligence based on violation of Chapter 411 of the Texas Labor Code. e. Employee workplace and equipment Finally, Llerena claims that North Texas failed to provide a safe workplace and safe equipment. (CR 12). 1 As noted above, an employer has a duty to provide and Among these are the duty to warn employees as to the hazards of their employment and to supervise their activities, the duty to furnish a reasonably safe place in which to labor and the duty to furnish reasonably safe instrumentalities with which employees are to work. ). 9 Plaintiff s Second Amended Petition at 4, VII.E. 1 Plaintiff s Second Amended Petition at 4, VII.D & H. 19

31 maintain a safe workplace for its employees. Farley, 529 S.W.2d at 754. But it is also well-established that an employer is only required to warn employees of dangers of which the employer has knowledge and the employee does not. See Jack in the Box, Inc. v. Skiles, 221 S.W.3d 566, (Tex. 27); see also Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 382 (Tex. 1995) (holding no duty to warn of risks that are common knowledge). No evidence was admitted that entering information in invoices was unreasonably dangerous, or that North Texas had knowledge with respect to the risk of repetitive stress trauma, manifested in this case as carpal tunnel syndrome, related to Llerena s job. Moreover, the evidence was undisputed that Davila had no knowledge of carpal tunnel syndrome before Llerena s injury. (3 RR 38-4). Thus, North Texas cannot be liable for failure to warn or train Llerena regarding the risk of carpal tunnel syndrome. Amrhein, 29 Tex. App. LEXIS 57, at *16-17 (citing Elwood, 197 S.W.3d at 795) ( T]here is no evidence that the common job assignment of tossing salads was a complex, unusually precarious job. ). Likewise, North Texas cannot be liable for failing to provide Llerena different equipment. There was no evidence admitted at trial that any of the equipment was dangerous, or otherwise inadequate. Llerena testified that she had an old chair and old desk. (4 RR 45-46). This testimony is no evidence the equipment was inadequate or caused Llerena s injury. And it is certainly no evidence the equipment and furniture was dangerous. Thus, there was no evidence to support the jury s negligence finding based on an unsafe workplace or unsafe equipment. Id. 2

32 2. Proximate Cause As noted above, assuming Llerena presented evidence that North Texas breached a duty, she must still demonstrate the breach proximately caused her injury. Moreno, 21 S.W.3d at 688. In this case, Llerena presented no evidence of but for causation. Specifically, no evidence was admitted at trial that had North Texas conformed its conduct or had done something different, Llerena would not have suffered injury. At most, the evidence supports that Llerena s injury was work-related. The fact than an injury is work-related is no evidence of causation. Patino, 158 S.W.3d at Thus, the trial court erred by entering judgment for Llerena on her negligence claim. Both the Texas Supreme Court and this Court have addressed employee injuries similar to that alleged by Llerena in this case. See Excel Corp. v. Apodaca, 81 S.W.3d 817 (Tex. 22); Melendrez v. Tuesday Morning, Inc., No CV, 21 Tex. App. LEXIS 3956 (Tex. App. Dallas June 14, 21, no pet.) (not desig. for pub.). In Apodaca, the plaintiff allegedly suffered back, neck and wrist injuries known allegedly caused by repeated lifting and moving bags of meat from a conveyor belt to a table. 81 S.W.3d at 819. The plaintiff was diagnosed with carpal tunnel syndrome in his wrist, and the parties agreed the injury was work related. Id. At trial, the plaintiff presented evidence from co-employees about recommended changes to the worksite and about recommended ergonomics and medical-management programs related to cumulative trauma disorders (CTDs). Id. at 82. The plaintiff also introduced evidence of Occupational Safety and Health Administration (OSHA) recommendations about changes to the worksite and the use of symptoms surveys, as well as medical testimony linking 21

33 Apodaca's injuries to his job. Id. The plaintiff also introduced evidence from the defendant s safety and ergonomics coordinator that, in his experience, the defendant s employees were exposed to risks that contribute to CTDs, and that employees in the plaintiff s job specifically were exposed to such risks. Id. On appeal, the defendant argued that the evidence was legally insufficient to support causation. Id. After reviewing the evidence, the Supreme Court stated: Id. at W]e have reviewed the record in its entirety and can find no evidence that symptoms surveys, conducted anonymously to identify worksite problems, would have identified Apodaca s CTD injuries earlier, thereby allowing CTD reversal through conservative treatment. Nor is there any evidence that modifications to the cryovac work environment would have reduced the number of injuries or the CTD incident rate for Apodaca s job. No evidence in the record indicates that had Apodaca performed fewer repetitions per hour, worked at a more comfortable work station, or had a photo eye on his machine, he would not have sustained his injuries. Furthermore, the fact that the meatpacking industry, or even just the cryovac operator position, had a high injury rate is not probative evidence of whether under different conditions, the cryovac operator job would have a lower injury rate. If anything, much of Apodaca s evidence fulfills only the foreseeability element of proximate cause by demonstrating the dangerous nature of the cryovac operator position. The Court reversed the judgment because the evidence did not demonstrate that that had the defendant modified the cryovac worksite or job requirements, or had it conducted symptoms surveys, plaintiff] would not have suffered his injuries or they would have been diagnosed sooner and reversed using other treatments. Id. at 822. With respect to the medical testimony offered by the plaintiff, the Court held that 22

34 w]hile the evidence supports the conclusion that at least some of plaintiff s] injuries were work related, it fails to establish that plaintiff] would not have been injured but for any negligent conduct by defendant]. Id. at 822. As a result, the Court reversed the trial court and rendered judgment for the defendant. Id. In Melendrez, this Court also reviewed a case involving an CTD. In that case, an employee alleged her employer s negligence caused her carpal tunnel syndrome. Melendrez, 21 Tex. App. LEXIS 3956, at *1. At trial the employee presented medical testimony that her carpal tunnel syndrome was work related. Id. at *4. The medical expert also testified that while he could not state with medical certainty that proper equipment would have eliminated the possibility of carpal tunnel syndrome... the chances of getting carpal tunnel syndrome can be reduced by proper ergonomic measures. Id. at 6. Further, a former safety manager for the defendant testified that a former employee had suffered carpal tunnel syndrome and, as a result, the defendant had a safety review that highlighted the link between CTDs and workstations and suggested ergonomic designs to help reduce CTDS. Id. at *6-7. Finally, a witness testified regarding guidelines for wrist position and the jury was shown a training video that demonstrated the relationship between poor equipment positioning and injuries to the hands and wrists. Id. at *7. Based on the foregoing evidence, this Court found the evidence sufficient to raise a fact issue as to causation because there was both direct and circumstantial evidence that poor ergonomic design of work stations increases the risk of carpal tunnel syndrome, and the evidence established a traceable chain of causation from plaintiff s] condition back to the ergonomic condition of her workstation. Id. at *

35 Here, there is no evidence regarding the ergonomic design of Llerena s workstation. Further, there is no expert testimony linking Llerena s condition to the design of her workstation or what changes North Texas should have employed. Finally, there is no evidence, expert or otherwise, that had North Texas implemented any changes or provided different equipment, Llerena would not have suffered her injuries. This case is very similar to Apodaca, in that the only evidence is that Llerena suffered a workrelated injury. But proof that an employee was injured at work is not proof of negligence. Even if Llerena could establish that North Texas was negligent, without evidence that Llerena would not have been injured had North Texas taken other reasonable steps, there is legally insufficient evidence of proximate cause. See Apodaca, 81 S.W.3d at 822 ( while the evidence may show that Excel should have employed other practices and that Apodaca s injuries were work related, none of it shows that had Excel employed those other practices, Apodaca would not have been injured. ); Leitch v. Hornsby, 935 S.W.2d 114, (Tex. 1996) (holding no evidence supported judgment for negligence because no evidence that plaintiff would not have suffered injury had the defendant supplied appropriate lifting equipment). While the Court s reasoning applies, this case is distinguishable from Melendrez because there was no testimony regarding prior instances of North Texas s employees developing carpal tunnel syndrome, the ergonomic design of Llerena s workstation, what design North Texas should have employed, and whether Llerena would have suffered injuries had another workstation been provided. Without evidence that improper workstations caused her injury and that she would not have suffered the injury had North 24

36 Texas provided an ergonomically designed workstation, or taken some other steps, there is legally insufficient evidence to support the elements of breach and causation. Apodaca, 81 S.W.3d at 822. Accordingly, this Court should reverse the trial court and render judgment that Llerena take nothing on her negligence claim. II. The trial court erred by entering judgment against North Texas because there was legally insufficient evidence to support Llerena s fraud claim. There was insufficient evidence to support a judgment against North Texas based on the jury s fraud finding because Llerena failed to present evidence of reliance or that she suffered damages as a result of the fraud. A. Standard of Review The standard of review for legal sufficiency was stated above in section I.A. B. Applicable Law The elements of fraud are: (1) a material misrepresentation was made; (2) the representation was false; (3) when the representation was made, the speaker knew it was false or made the statement recklessly without any knowledge of the truth; (4) the speaker made the representation with the intent that the other party should act on it; (5) the party acted in reliance on the representation; and (6) the party thereby suffered injury. Texas Integrated Conveyor Systems, Inc. v. Innovative Conveyor Concepts, Inc., 3 S.W.3d 348, 365 (Tex. App. Dallas 29, pet. denied). C. Analysis The trial court erred by entering judgment on Llerena s fraud claim because there was legally insufficient evidence of reliance and damages. 25

37 1. Reliance Assuming for purposes of argument that Mr. Davila represented to Llerena that North Texas had workers compensation insurance and that representation was false, Llerena was still required to prove that she relied on North Texas s representation and suffered injury as a result. There is no evidence in the record that Llerena detrimentally relied on North Texas s representation. Specifically, Llerena presented some evidence that Davila told her that North Texas had workers; compensation insurance when it, in fact, did not. (4 RR 31, 145). But Llerena presented no evidence she relied on this representation to her detriment. In other words, Llerena did not testify she would not have taken the job, or would not have continued to work for North Texas had she known it did not have workers compensation insurance. To establish the element of causation in a fraud claim, a plaintiff must show that the defendant s acts or omissions were a cause-in-fact of foreseeable losses. Prospect High Income Fund, ML CBO IV v. Grant Thornton, LLP, 23 S.W.3d 62, 618 (Tex. App. Dallas 26, pet. denied) (citing Marathon Corp. v. Pitzner, 16 S.W.3d 724, 727 (Tex. 23)). A plaintiff establishes reliance by showing that the defendant s acts and representations induced it to either act or refrain from acting, to its detriment. Id. (citing TCA Bldg. Co. v. Entech, Inc., 86 S.W.3d 667, 674 (Tex. App. Austin 22, no pet.)). Because there was no evidence of reliance, any judgment based on fraud was error. 2. Causation and Damages Likewise, in order to be entitled to judgment based on fraud, Llerena was required to prove that her reliance on North Texas s misrepresentation caused her 26

38 damages. See Wil-Roye Inv. Co. II v. Wash. Mut. Bank, F.A., 142 S.W. 393, 412 (Tex. App. El Paso 24, no pet.). Here, there is no evidence that relying on the representation that North Texas had workers compensation insurance caused the damages awarded. Specifically, the sole damages question submitted was a question on negligence damages and was not conditioned on a positive answer to either liability question. See TEXAS PATTERN JURY CHARGES: General Negligence Intentional Personal Torts 8.2 (28) (personal injury damages). The only damages question asked the jury to determine Llerena s damages resulting from the occurrence in question. (CR 34). Certainly, if occurrence in question is the injury (i.e., carpal tunnel syndrome), the finding was unsupported because it cannot be disputed that North Texas s alleged misrepresentation concerning workers compensation insurance did not cause Llerena s carpal tunnel syndrome. The proper measure of damages for fraud is either benefit of the bargain or out of pocket expenses. Dick s Last Resort of W. End, Inc. v. Mkt./Ross, Ltd., 273 S.W.3d 95, 912 (Tex. App Dallas 28, pet. denied) ( Texas recognizes two measures of direct damages for common-law fraud, the out-of-pocket measure and the benefit-of-thebargain measure. The out-of-pocket measure computes the difference between the value paid and the value received, while the benefit-of-the-bargain measure computes the difference between the value as represented and the value received. ) (citing Formosa Plastics Corp. v. Presidio Eng rs & Contractors, Inc., 96 S.W.2d 41, 49 (Tex. 1998)). Llerena did not submit a jury question seeking damages for fraud. (CR 27-36; 6 RR 4). See TEXAS PATTERN JURY CHARGES: Business Consumer Insurance Employment 27

39 & (28) (fraud damages). And Llerena presented no evidence of out of pocket expenses caused by North Texas s alleged fraud. Further, assuming North Texas misrepresented it carried workers compensation insurance, Llerena presented no evidence with respect to the amount she would have received had North Texas been a workers compensation insurance subscriber. In other words, what would Llerena have received had North Texas carried workers compensation insurance? There is no evidence in the record from which a jury, or this Court, can discern the answer. The record contains evidence that Llerena made approximately $38, gross income per year working for North Texas and that she incurred $35, in medical costs related to her injury. (4 RR 83). These figures are not evidence of any benefit of the bargain damages or out of pocket costs caused by her reliance on North Texas s alleged misrepresentation. As a result, there is legally insufficient evidence to support the jury s award of damages for fraud. 11 III. The trial court erred by entering judgment against North Texas because there was legally insufficient evidence to support the award of damages for future earnings. Assuming there is legally sufficient evidence to support a judgment for negligence or fraud, there is legally insufficient evidence to support the jury s award of $331,739 damages for lost earnings in the future. 11 Assuming the medical costs constitute out of pocket damages despite the lack of evidence of what was paid or what would have been paid by workers compensation, there is still legally insufficient evidence to support the award for future earnings because there was no evidence of what amount, if any, or for how long, Llerena would have been paid under workers compensation. 28

40 A. Standard of Review The standard of review is set forth above in section I.A. B. Applicable Law The proper measure of damages for personal injuries is lost earning capacity in the future. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 763 (Tex. 23); U- Haul Int l, Inc. v. Waldrip, 322 S.W.3d 821, 853 (Tex. App. Dallas 21, pet. filed). Even if lost earnings are submitted to the jury, the evidence must support that the defendant s conduct caused the lost earnings in the future. Loss of earnings is the loss of actual income due to an inability to perform a certain job that the person held before the injury. Plainview Motels, Inc. v. Reynolds, 127 S.W.3d 21, 35 (Tex. App. Tyler 23, pet. denied). To recover damages for diminished earning capacity, the plaintiff must demonstrate (1) the existence, i.e., the fact, of an impairment, and (2) the extent of the loss resulting from the impairment. Pilgrim s Pride Corp. v. Smoak, 134 S.W.3d 88, 93 (Tex. App. Texarkana 24, pet. denied). C. Analysis No evidence was admitted with respect to Llerena s lost earning capacity. In other words, Llerena failed to establish North Texas s conduct caused her damages by reducing the amount she could earn in the future. The only evidence admitted at trial was the amount Llerena was earning at North Texas at the time of her injury. (4 RR 81-83). This is no evidence of lost earning capacity. Pilgrim s Pride, 134 S.W.3d at 9 ( Loss of earning capacity, however, is not measured by what a person actually earned before injury, but what the worker s capacity to earn a livelihood actually was, even if he or she 29

41 had never worked in that capacity in the past. ) (citing Wilkins v. Royal Indem. Co., 592 S.W.2d 64, (Tex. Civ. App. Tyler 1979, no writ) and Springer v. Baggs, 5 S.W.2d at (Tex. App. Texarkana 1973, writ ref d n.r.e.)). As noted above, future lost earnings are not a proper measure of damages in a personal injury case. Golden Eagle Archery, 116 S.W.3d at 763. Assuming lost earnings could be recovered, Llerena was still required to prove that North Texas s conduct caused her to lose earnings in the future. See Plainview Motels, 127 S.W.3d at 35. No evidence was admitted that she could not work in the future or that she was entitled a percentage of her current wages for the rest of her working life. Llerena was not entitled to lost earnings in the future without evidence that North Texas s conduct rendered her unable to work in the future, or, at the very least, evidence that her ability to work in the future was diminished by her injury, and if so, by how much. Otherwise, the jury is improperly choosing a number at random. See Repub. Waste Serv. v. Martinez, No CV, 211 Tex. App. LEXIS 54, at *2 (Tex. App. Houston 1st Dist.] Jan. 2, 211, no pet. h.) ( Although the fact finder has discretion when determining an award of future income that discretion is limited and must have evidentiary support. ) (citations omitted); see also Saenz v. Fid. & Guar. Ins. Underwriters, 925 S.W.2d 67, 614 (Tex. 1996) ( J]uries cannot simply pick a number and put it in the blank ). Accordingly, there is legally insufficient evidence to support the damages for lost earnings found by the jury and awarded in the judgment. 3

42 IV. In the event the trial court erred by entering judgment on one of Llerena s claims, a new trial is required because the damage question was based on an invalid theory of liability. Assuming the Court determines that the trial court erred by entering judgment on only one of Llerena s claims, a new trial is required on liability and damages on the remaining claim because of charge error. Specifically, the jury charge included questions on two theories of liability, at least one of which was flawed, but only one damage question. A. Standard of Review Claims of charge error are reviewed for an abuse of discretion. Royal Macabees Life Ins. Co. v. James, 146 S.W.3d 34, 351 (Tex. App. Dallas 24, pet. denied). Once error is shown, the reviewing court applies Casteel s harmful error analysis. Royal Macabees, 146 S.W.3d at 351 (applying Casteel harmful error analysis); TEX. R. APP. P. 44.1(a) (standard for reversible error). In Casteel, the Texas Supreme Court reaffirmed that single, broad-form liability questions can result in harmful error: When a trial court submits a single broad-form liability question incorporating multiple theories of liability, the error is harmful and a new trial is required when the appellate court cannot determine whether the jury based its verdict on an improperly submitted invalid theory. Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 388 (Tex. 2). The Texas Supreme Court extended that reasoning to broad-form damage questions in Harris County v. Smith, 96 S.W.3d 23, 236 (Tex. 22) (holding that Casteel s reasoning applies equally to broad-form damage questions... ). B. Applicable Law 31

43 A jury charge is fatally flawed when (1) it is not possible for the Court to determine whether the jury improperly considered an improperly submitted liability theory in deciding to award a certain type of damage, and (2) it prevents a party from isolating the error and presenting its case on appeal. See, e.g. Royal Macabees, 146 S.W.3d at 351 (citing Harris County v. Smith, 96 S.W.3d 23, 234, 46 Tex. Sup. Ct. J. 263 (Tex. 22) and Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 388, 43 Tex. Sup. Ct. J. 348 (Tex. 2)). Where Casteel-error occurs, the result is not a remand for a recalculation of damages. Rather, the court is required to reverse the judgment and remand for a new trial on liability and damages. Royal Macabees, 146 S.W.3d at ; Schrock v. Sisco, 229 S.W.3d 392, 396 (Tex. App. Eastland 27, no pet.) (reversing and remanding for a new trial on all issues because w]e cannot order a separate trial solely on unliquidated damages when liability is contested. ). C. Analysis In this case, the trial court submitted three liability questions and one damages question. (CR 31-34). The jury answered yes to the negligence and fraud liability questions and entered damage amounts for four of the five sub-parts in the damages question. (CR 31-32, 34). Thus, there is no way to determine whether the jury considered fraud or negligence when it answered each sub-part of the damage question. Llerena failed to meet her burden of proof as to liability or damages on both issues. However, even if the Court determines that the evidence is sufficient to support one of the liability findings, remand is still required for a new trial on liability and damages because of the problems with submitting a single damages question. See, e.g., Royal 32

44 Macabees, 146 S.W.3d at ; see also Schrock, 229 S.W.3d at 396. For example, if the Court finds sufficient evidence to support the negligence finding but insufficient evidence to support the fraud finding, the Court will be unable to determine if the jury considered only the negligence or whether it also considered fraud in determining damages. The same is true in the reverse. As such, at a minimum, a remand is required here. In Royal Macabees, the jury was asked a number of liability questions, ranging from breach of contract to fraud and DTPA. 146 S.W.3d at The charge included a question regarding past and future mental anguish damages that was predicated on a Yes answer to any of four separate liability questions, including the breach of contract question. Id. at 351. Mental anguish damages are not recoverable for a breach of contract. Id. By allowing the jury to award mental anguish damages if the jury answered Yes to different theories of liability, including one for which such damages are not recoverable, it was impossible to tell under which theory the jury determined mental anguish damages applied. Id. In other words, the jury may have considered the breach of contract when calculating the mental anguish damages. If it did, then the damages were not recoverable. Because it was impossible to determine which liability theories the jury considered when determining damages, this Court reversed and remanded the damages award as well as all of the tort causes of action. Id. at Similarly, in Schrock, the jury answered Yes as to liability for intentional infliction of emotional distress and assault and awarded damages for each theory of liability. Schrock, 229 S.W.3d at 393. The problem was that the trial court submitted one 33

45 exemplary damages question conditioned on a Yes answer to either liability question. Id. at 394. On appeal, Schrock conceded that the intentional infliction of emotional distress question should not have been submitted because it was an invalid theory of recovery. Id. Despite this concession, the court of appeals was still required to reverse the judgment and remand for trial on all issues because the single exemplary damages question was erroneous and harmful. Id. at 394, 396. Like the cases discussed above, assuming evidence was legally insufficient on one of Llerena s claims, there is no way for North Texas, this Court, or Llerena for that matter, to ascertain if the jury awarded damages based on its affirmative answer to the invalid claim. Accordingly, in the event this Court determines that there is legally insufficient evidence to support negligence or fraud, the Court should reverse the judgment of the trial court and remand for a new trial on liability and damages. See TEX. R. APP. P. 44.1(b). CONCLUSION The trial court erred by entering judgment on the jury s verdict because there was legally insufficient evidence to support a judgment on Llerena s claims for negligence or fraud. Llerena failed to establish that North Texas breached a duty to her or that her injury would not have occurred but for North Texas s breach. No evidence was admitted at trial tying her injury to the condition or design of any workplace equipment and there was no evidence that any precautions taken by North Texas would have prevented her injury. Therefore, the trial court erred by entering judgment on Llerena s negligence claim. 34

46 Similarly, there was no evidence that Llerena relied on any alleged representation by North Texas or that the alleged misrepresentation caused her damages. No evidence was presented at trial that she would not have taken the job absent the representations concerning workers compensation insurance. Even assuming Llerena proved reliance, the lack of workers compensation insurance certainly did not cause her carpal tunnel syndrome. Further, there was no evidence adduced at trial as to any out of pocket or benefit of the bargain damages as a result of fraud. Specifically, there was no evidence as to what the benefits of workers compensation would have been had North Texas been a subscriber. Thus, judgment on Llerena s fraud claim was also error. Assuming there is legally sufficient evidence of negligence or fraud, there is legally insufficient evidence to support the award of lost earnings. The proper measure of damages is lost earning capacity. Nevertheless, Llerena s only evidence was the amount she made prior to her injury. Prior earnings simply beg the question of damages, they do not answer it. Llerena s pre-injury wages are no evidence of the amount of lost earning capacity or lost earnings in the future as a result of her injury. Finally, in the event this Court finds there is legally insufficient evidence to support the judgment on one of Llerena s claims, the judgment must be reversed and the case remanded for a new trial on liability and damages. Because the trial court submitted three liability questions and one damage question, and at least one of the claims was invalid, there is no way for this Court to determine whether the jury s damages were based on the valid or invalid claim. And there is no way for North Texas to properly present its appeal if it cannot tell whether the jury awarded damages for one or both 35

47 claims. Therefore, the Court should reverse the judgment and remand the case for a new trial. PRAYER Based on the foregoing, Appellant North Texas Trucking, Inc., respectfully requests the Court REVERSE the trial court and RENDER judgment that Appellee, Carmen Llerena, take nothing by way of her claims against Appellant. In the alternative, Appellant requests the Court REVERSE the award of future earnings and MODIFY the judgment accordingly. In the further alternative, Appellant requests the Court REVERSE the trial court s judgment and REMAND the case for a new trial on liability and damages. Appellant further requests the Court award Appellant costs of court and all other relief to which it is entitled. Respectfully submitted, By: BYRON K. HENRY Texas Bar No HILAREE A. CASADA Texas Bar No COWLES & THOMPSON, P.C. 91 Main Street, Suite 39 Dallas, TX 7522 (214) (214) (Fax) ROGER M. YALE Texas Bar No McKinney Street, Suite 11 Denton, TX

48 (94) (94) (FAX) ATTORNEYS FOR APPELLANT CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument has been delivered pursuant to TEX. R. APP. P. 9.5 to all parties and/or counsel as indicated below on February 23, 211. VIA CERTIFIED MAIL RETURN RECEIPT REQUESTED Domingo Garcia Paul R. Hornung Law Offices of Domingo Garcia, P.C. 4 S. Zang Blvd. 6 th Floor, Suite 6 Dallas, TX 7528 BYRON K. HENRY 37

49 INDEX TO APPENDIX Final Judgment (CR 51-53)... 1 Jury Charge and Verdict (CR 27-36)... 2 Sample Invoice (8 RR Def. Ex. 12)... 3 Sample ACORD Certificate (8 RR Plf. Ex. 5)... 4 Termination Letter (8 RR Def. Ex. 14)... 5 Excerpts from Medical Records of Dr. Wilcox (8 RR Plf. Ex. 15)... 6 Final Report and Release of Dr. Olivares (8 RR Plf. Ex. 21)... 7 Order Denying Post Judgment Motions

50 INDEX TO APPENDIX Final Judgment (CR 51-53)... 1 Jury Charge and Verdict (CR 27-36)... 2 Sample Invoice (8 RR Def. Ex. 12)... 3 Sample ACORD Certificate (8 RR Plf. Ex. 5)...4 Termination Letter (8 RR Def. Ex. 14)... 5 Excerpts from Medical Records of Dr. Wilcox (8 RR Plf. Ex. 15)... 6 Final Report and Release of Dr. Olivares (8 RR Plf. Ex. 21)... 7 Order Denying Post Judgment Motions

51

52 CARMEN LLERENA, Ptain.tiff, Vs. NORTH TEXAS TRUCKING INC., RONNIE MADRA and MABRA MANAGEMENT LLC., Defendant. _.. -'Atfu~o7.. CAUSE NO F FINAL.fUDGMENT '' I i'....,.... ',. ' '1 '..!NTHE DISTRICT COURT. ;.t/ l 16TH JUDICIAL DISTRICT DALLAS COUNTY, TEXAS On April 27, 2 I, in the above-~ntitled and numbered cause was called for trial. Plaintiff, CARJ\-1 EN Ll.rm.F.:NA, appearedin person and through her atwmey of record a11d announced ready for trial. Defendants, NORTH TEXAS TRUCKING INC., RONNU: MABRA and MABRA MAN A CEMENT LLC., having filed an answer in this lawsuit, appeared through their representatives rmd through their attorney and announced ready for trial. After a jury was impaneled and sworn, it heard the evidence and arguments of counsel. In response to the jury 'charge, the jury made findings that the court received, filed, and _entered into record. The questions sobmitted to the jury and tlie jury's findings are incorporated in thisjudgment for all purposes by reference. The jury made the following findings: I. Tbat Delendant NORTH TEXAS TRUCKING, INC. was found to be negligent on Plnintift's clnim, which proximately caused Plnintifrs injuries. 2. That Defendant NORTH TEXAS TRUCKING,!NC. was f(>und I() have committed a fraud urion Plaintill 3. That Defendants, RONN E MABRA and MABRA MANAGEMENT LLC., were riot found to have formed a civii conspiracy with NORTH TEXAS TRUCJ<JNG, INC, to FINAL JUOPli~NT/st l Page H 51

53 c lj D G c : ' " c perpr!u!:"llt~ a fmud on Carmen Llerenn. That the amount of cash paid now to fairly and reasonably compensate Plaintiff, for damages proximately caused by the incident in question i< as follows; a) b) c) d) Medical care expenses incurred in the rast. An swer: $31,492.58; Lost earnings and employee benefits in the past. Answer: $2,.; Lost earnings and employee benefits that in reasonable probability will be lost in the future. Answer$ 331, 739.; Comr)ensiJ.tO"ry damages-in the past, which include emotional pain and suffering, inconvenience; mental anguish, loss of enjoyment of I.,,and other non pecuniary losses. Ans\Ver: $ 5,.; The Jury hnving found for the Plc,intiiTin the amount of$ 83, in dan1ages S\lstaincd in the past and $33 l, 739. in damages suswined in the future, for a total damage award of$415, , this Cotu1 finds that Plaintiff is entitleci to pre-judgn1cnt interest on the amount of past damages on -the "rnnunt of$83, , calculated nt!h~ J/!te <){" 5% rer annum from Septcmbei-4,. /(/6.":3 rj". 27, un.til May J, "21, in.theamountofs I L:;±3:1::;12 1 Plaintiff also hns $2, is court costs. ~ Therefore,the Counlinds that Plnintiffrecovcrdamages from i..,jcndmt NORTH TEXAS«~ /~lck3 TRUCKING, lnc. $415, , plus pre-judgment interest in the amount on 1 I, is t1, and..p'</:j e t'l ). Y:;?~If" Cout1 costs of$"2.. 35<1.57, for a total of.l:~:;;o::;'i'~. The Court l1nds that" Plaintiff shall not recover against Defendants, t<onnle MADRA and id AIJRA 1.-1 t\na CEIVi!!.NT LLC. The final amount 15" (,t.?. ' <'IS" p.;z lcf--'. ofthisjudgmen! is.:~~j?-s;i6~ IT IS, THEREFORE, ORDER "!l,.-\d.jt!ligeo, and DECREED by this Coun that... Plaintiff CAR~ DN"LLERENA have ~V1JCcover from Defendant NOHTI! TEX..\S TRUCKING, t/.mf of") «> f'/. r. INC. the sumo I" So;" ;:;;-+r+.":!'l. and that post:judgmcnt interest shall accrue on any unpaid Judgment, 1 $ :>.~~ at 5% is$ 4,17 1.(,3 :"")"car or~ I I.44 per d~1y. ~~o.r;; ~~ Jl~'\~/1){~~: ~- FINAL JUOG~I Ei-;T/st Page ~----~--~'~--~~~~--~~--~~ l I

54 c c. c ' n c E oi,. o. or any part the.r('of. ntthe r"le of 5% rer ann '.!Ill frorn the d~lle of JudP='lCnt. IT ls FU!<"rli.ER ORDERED Al\' DECI<IcEO t 1 1itt all writs and processes for the enforcement a:;_~j.:;ollcction of ~is juqp,ment 9' the costs ofp.>url)l1'jo' i:;sue?s n<;cessary...p'. ''YJ-. 51.::D/ '-'" f/.., Ora--,_.,,,; ':' ' /J<>r:-,- '"'U --lt,~r;rt.a :fu({)""'~ f- y '!&V~ i:sf1~ SIGNED this _"rr'jay of \)U ~, 2 I. cfr o..f/ f«-kt>.r. --,.i/ af/ d v--<' "'"S "-"- J < ty/}~~fj4.. ~'"~~ 4 /."V'.O"M'. / g----~ P 1 R. Ho:-n.!r.: -~.1!>-'lrncy nt l... aw AW OFFiCf: Oi' DO~ifNCO GARCI/1, P.C. Attorney for l'i:linti IT Mr. Roger lvi. Yale, E~tqe-{:n # At~ f.ozi~nd 7 Ak EXAS :RUCKING. r--ic. Mr. Eric G. W:<i:--:..,., Underwood. l'er. i:o> nne! Ralston,?.C. Attorney for!> :.-.: :::nts RO,-.J>HI:: ~-1.:\E\R,\ nnd MAll IV\ MANAGU.!ENT LLC. c c Q 8 : c~ L FINAL JUDGMCNT/st Page 3 A 53

55

56 Q CARMEN LLERENA,. Plaintiff versus NORTH TEXAS TRUCKI\'G INC., RONNIE MABRA and MAVERICK MANAGEMENT LLC Defendants. CAUSE NU:vtBER F. s ~ CHARGE OF THE COURT LADIES AND GJ<:NTLEMEN OF THE JURY: ~~~ lt.!t... /3.~.~ '.J i; IN THE DISTRICT C~~:. DALLAS COUNTY, TEXAS U6th DISTRICT COURT This case is submittt'd to you by asking questions about the rncts, which you must d~-cidc from the evidence you have hcard.'in this trial. You are the sole judges of the credibility of the witnesses and the»'eight to be given their testimony. but in matters of law, you must be governed by the instructions in this charge. In discharging ynur responsibility on this jury; you will observe all the instructions which huvc previously been given you. l shall now give you additional instructions which you should careful! y and strictly follow during your deliberations. I. Do not let bias, prejudice or sympathy play any part in your deliberations. 2. In arriving at yourunswers, consider only the evidence introduced here under oath and such exhibits, if any, as hav( been introduced f()r your consideration under the rulings of the court, that is, what you have seen and heard in this courtroom, together with the law as giycn you by the court. In your deliberations, you will not consider or discuss any1hing that is not represented by the, evidence in this case.. 3. Since every answer ihahs required by the charge is important, no juror should state or.. Page I oft tj 1 -~:S'g ~

57 : f-: c Q c ' _, I consider that any rcquircclswer is not important. 4. You must no.t decide who you think should win, nnd then try to answer the questio'ns accordingly. Simply answer the questions, and do not discuss nor concern yourselves with the effect of your answers. ' 5. You will not decide the answer to a question by lot or by drawing straws, or by any other method of. chance. Do not return a quotient ver~ict. A quotient verdict means that the jurors agree to abide by the result to be reached by adding together each juror's figures and dividing by. the numbcr of jurors to gcf an average. Do not do a11y trading on your answers; that is, one juror should not agree to answer a certain question one way if others will agree to answer another question another way. 6. Try to cnme to unanimous agreement on the questions asked. You may, however, render your verdict on a non-unanimous basis; hat is, upon the vote often or more members of the jury. The same ten or eleven of you must agree upon all of the answers made and to the entire verdict. You will not, therefore, enter Into an agreement to be bound by a majority or ~ny other vote of less thad ten jurors. If the verdict and all ol'thc answers thcr<.>in me reached by. unanimous ugrccn\enl, the presidit1g juror shall sign I he verdict for the entire jury. If any juror disagrees as to any answer :nadc by the verdict, those jurors who agree to all tindings shall each sign the verdict. These instructions nrc given you because your conduct is:subjeetto rcvi<.>w the same as that ofthc witness~s, parties, attorneys and the judge. I fit should b.e found that you have disregarded any of these instructions. it will be jury misconduct and it may require another trial by another jury; then all or our time will hav!' been wasted. The presiding juror or any other who observes n violation of the court's instructions shall immediately wam the one who is violating., the same and c:tution lht! juror O(H to do so again. I will now give -you some important legal definitions: ~ "Prepond?rance oft he evidence" means the greater weight and degree of credible evidc'ncc Hdmillcd in this cnsc and represents the burden ofproofthut you must follow in nnsw.c_ripg ~,]1 Of the Questions in 'this Chnrgc. Page 2 of

58 b E ' c c } : ' c c c c ",_: : ' to do that which a pcrsoi1 or o~dinary prudence would have done under the same or similar circumstances, or doing thot '~ hich similur Circum!'itanccs. a person or ordinary prudence W<lltld not have done under the same or,.. "Ordin;iry Care" means the degree or care which wotdd be used by a person or ordinury prudence u~dcr the Sllme or simibr circurnsl8nces.,... ''Proxirn:..~t:c Cause" means that cause which 1 in a natural and continuous sequence, produces aq event, and >vithout which cause such event would not have occurred; and in order- to be. a proximate cause, the act or omission complained or must be such that a person using ~rdinary care \VOul<.1 have foreseen!hat the event, ur some similar event, might reasonably result therefrom. There may be more" than one proximate cause of an event. When thcs<.' de lined words or ph ruses arc used within the Charge; you should apply the legal dctioiiion conveyed in place of any other...;caning these words might have. For ull other terms a11d phrase;; 11sed in the Charge. you should arply the meanitig of the words as they arc commnnly undc.rs!ood. A lite! rna) be cstublishcd by direct evidence or by cir.cumstuntial evidcnc~ or both. A fact is cstablished'by direct evidence when proved by documentary evidence or by witnesses. - who saw the act.diinc or hcu;u the words spoken. A fact is established by circumstantiul ~vidence when it ii1ay be fuirty and reasonably in!"crrcd rrum other facts proved.... This Ch~trg~ contain;;: f~ur questions. Depending on your nns\.vcrs, y9u may not be asked to answer all lthir., Questions One, Two and Three require a "Yes" or "No" answer.. A "Yes' answer must be based on a preponderance o!"thc evidence. If you do not lind that a prcponlk runcc of' ~he evidence supports a "Ycs' 1 ruls\\'t:r, then answer HNo'" to: that Question. Question Four r<:quircs you to detcmi.ine the uinount ofdumages incurred, if any. The amount of damages fnund by you, if any. must also be based on prcpondcranccofevidchcc. \-.. Page 3 of" to '

59 c '!.;-' ~. ~. Question FcH1r hns Jive su"l?.flnrts, with l!uch sub-par1 representing i~tcntiol clcmc~t of damage~. Consickr each clement scpmntely, und cun;idcr cmly the dements listed in the subparts. Express yo~:r nnswcr in dollars and cents, Do'"" ''dd any nmounts for interest Do not include damnl~cs 1;1r one clcme nt in any other clcrnc'nl. Do not spccuhtc ~bout what a party's ultirtmlc recovery mn~' or m:ly not be as Hn)' recovery wi!l be <Jc1cm1incd by the Cnurt when it applies the l:~w to your answers at the time oi'jud911cnt. : ' c. " c Page 4 of' 1..

60 n b QUESTION ONE l u c c ( c! l} Did the negligence, if any, of North Texas Trucking proximately cause the occurrence in.question? An.ywer "Yl'.\: ''or No: P~occcd to Question Two. " Pagc5of!O '. G ) i

61 f. ' r; L ; -! QUESTION TWO Did North Texas Trucking commit a fraud upon Carmen Llerena? A fraud is con1mittcd when a material rcprescntntion is made, the representation is false, when the representation is made, the spc akcr knew it is false or made it recklessly without any knowledge of the truth and as a positi,;c assen ion; the speaker made the representation with ;'1c intent that the other pnny should act u;>on it; the party justifiably acted in'rcliance on the representation; and the party thereby suffered injury. Answer "Yes or "No: 'Its c Proceed to Question Three. c Page(> of I. 32

62 1- l:-j c c QUESTION THREE Did Ronnie Mabra and North Texas Trucking form a civil conspiracy to perpetuate a fraud ori Carmen Llerena? A civil conspiracy includes two or more persons, nn object 1 be accomplished, a meeting of the minds on the object or course of'<~ction; one or more unlawful, overt acts; and damages as a proximate result..~lnswer "Ye,, or "No: c c c. c If you answered ~ Yes" to one or morc.ofthc previous three Questions, then proceed to Question Four. If you answered "No" th all three of these Questions, then skip Question ~u~. -1 ' G Page 7 of 1 ~- ~- 33

63 ~ \ ; c c! -".. -, J C li L c 8'. QUESTION FOU,. What sum of money, if paid now in cash, would fairly and reasonably compensate Carmen Llerena for her damages, if any, resulting from the occurrence in question?... Ansll'cr in dollars ami cent. Consider each o,(the elements o,(damage.\ lisred below and tjoji'e other: A. Medical care expenses incurred in the past. Answer: $3 (?9.t. r;& B. Lost e8mings 8nd employee benefits in the past. Answer: $.2tJ.c.a 'I C. Lost earnings and employee benefits that in reasonable probability w.\11 be lost in the future. D. CompensCJtory damages in the past, which include emotional pain and suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non pecuniary losses. Answer:$ So1 ooo E. Compensatory damages in the future,. which include emoti.onai]ytin and suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non pecuniary losses... Answe :-: $ _)_~ I' End of Questions. Pagc8of!O i: '- -34-

64 ..... ;. C c C c c! A flcr you :;dire rol: jury room, you will select your own tsidingjuror. The first thing the pr6iding juror will do is to have this complete charge read aloud, and then you will deliberate upon your answers to the questions asked. It is the duty ol the presidingjuror: I. To pre:'ide.during your deliberations; 2. To sec.that your deliberations arc conducted in art orderly manner and in accordance with the instn1cti(:ns in I his chitrgc; 3. To write out and ltand to the bailiff any questions concerning the case that you desire to have dclivcrtd tt) the judge; 4. To votd on the issue$; 5. To wri:? your answers to the questions in the spaces provided; r 6. To certify to your verdict in the space pruvidcd tltr the presiding juror's signature or to obtain the signatures of all the jurors \vho agree with the verdict if the verdict should be less than unanimous. Alkr you hn\;c' retired to consider your verdict, no one has any uuthority w commu nicatc with you cxct pt the bai li rr of this court. You should not discuss this case with anyone, not" even the other members of tho j"ry. un.lcss alluf you urc asscmhled cmcl ;;r~scnt in tht: jury rooin. Sho"uld anyone ar"l~mpt to talk. to you about the case before the verdict is returned, \~~ether at the courthouse. 1 yo,;r horne, or elsewhere, please inform the court of this fact. When you have answered all the questions you arc r~ quircd to answer under the instructions of the judge and your presiding j ur~r has placed your answers in the sppccs provided and signed the wrdict as presiding juror or pbtained!he sign:llurcs, y<)u will advise the b<tiliftat the door of the jury room that you have rc:tchcd wvcrdict, and then you will return into court with your verdict.. Page 9 of I '. Hun. BnJcc Priddy, Judge Presiding!16th Civil District Court.. 35

65 G \ ~~CERTIFICATE. We, the j~1ry,hnve Hnswcrcd the nhove nnd foregoing questions os herein indicated; and herewith rctllm the same into court as our verdict ' (To be signed by the presiding juror if unanimous.) Q c G ' Presiding Juror Printed n3mc (To b~ signed hy those rendering the verdict if the jury is not unanimous.) c j c Q Jurors' SFgnntures IY {?'7,/.&;,---- lllr(}rs' Printed Nnmes 1o.v~ o... "":c \rli'ytl:\:z.; l)tbr.!l.smr;d;. 3_-dotM t.. m D rou-q _!/_.f.-7/\1 ~..AI.--~ /lj!2fa/li/e icll f:Ja.L'-1. -~d.o.je J~ Ci hjf;ntt:::sc :::::=r~~~~~e L_;;;du _ //!irs A q_j/ --f-v._a.ca 'f,... Jln ~ _1-jc.a_L...Jb.lHillS ~~C2---- AI?-X!/~ ' i _! l'itge J o or 1 o

66

67 NORTH TEXAS TRUCKING, INC. P.O. BOX DALLAS, TX Invoice Date Invoice# 8/5/ Bill To. NORTH TEXAS CONTRACTING. INC. P.O. BOX 468 KELLER. TX Project Name Project Location Project Number SPRINGTOWN ADDITIONS 115 Hwy. 199 s Quantity Item Ticket Num Serviced Description Rate Amount 5.5 '~'"nm /3/26 I ON SITE HAULING }. \?h '-ty<i. / Total $275. Phone# Fax# northtt@msn.com

68 . ') NORTHTEXAS TRUCKING, INC. P.O. BOX DALLAS, TX Date Invoice Invoice# Bill To NORTH TEXAS CONTRACTING. INC. P.O. BOX 468 KEI,LER. TX Project Name STREET RECONSTRUCTION Project Location DENTON DR. DALLAS CO. Project Number Quanlity Item Ticket Num... Serviced Descriplion ' TONS /1/26 DELIVERED LIMESTONE TONS /1/ TONS /1/26.?? - :::) TONS ~l TONS /1/ TONS /2/ TONS / TONS /2/ TONS /2/26 " 23.6 TONS TONS TONS / TONS :! TONS /2/26.. Rate Amount ' I ' - ~?" f Phone# Fax# Total $ northtt@msn.com

69 -- NORTHTEXAS TRUCKING, INC. P.O. BOX DALLAS, TX Invoice Date Invoice# 8/5/ Bill To WALTON CONSTRUC"IlON 31 KNOX STREET SUITE 4 DALLAS. TX 7525 Project Name Project Location SE CORNER@ 175 & MOCKINGBIRD Project Number Quantity Item Ticket Num. Serviced Description Rate Amount 2.82 TONS 46978t 812/26 DELIVERED LIMESTONE 22, TONS /26 " TONS () TONS /4/26 " '..._/ '~ Total $ Phone# Fax# northtt@msn.com

70

71 ACORD CERTIFICAT OF LIABILITY INSURAI ;E I DAlE (J.IMIDDI'I')"YY) 313/26 "' PRODUCER Maverick Truck Insurance THIS CERTIFICATE IS ISSUED AS A MATIER OF INFORMATION ONLY AND CONFER.S NO RIGHTS UPON THE CERTIFICATE 584 Westi-2 HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR '...,,...' Suite 21 ALTER THE COVERAGE AFFORDeD BY THE POLICIES BELOW. (""' Arlington TX 7617 INSURERS AFFORDING COVERAGE INSURED NORTH TEXAS TRUCKING,INC. INSURER A> Interstate Fire & Casualty.lns. Co. P.. BOX DALLAS TX ~E~~ r~ :; TERM OR INSURER,, Home State County Mutua! Ins. Co. INSURER c: Acceptance Indemmty los. Co, cecompany INSURER D T.l.l.i. INSURERE: NAIC# o BEEN ISSUED TO THO I NAMED ABOVE FOR THO Ot'>l' ;.~-"':'~u~jndicated. NOTWfTHSTANDING : ~~~/. OR OTHER IT WITH: u't~~~which THIS CERTIFICATE MAY BE ISSUED OR I BEENI I BY I 2,_!;l:;R;:~~S 'u TERMS, EXCLUSIONS AND CCNOfTIONS OF SUCH ;uiim-siiowi-i F ~'!.';) - ~~ R~~~~ UMn '"'N ~ s x O<N<OAt LIABILITY s IOC ooc - I ClAIMS MADE!.Kl OCCUR. s s - "u"""""" PE"' fxl POLICY fxl ~f\9; - tx~ I OC B LlA91U'n' >AU, HOM" ln&tn1 /?7 ') ~ ANYAtrrO 1- AU OWNED AUTOS CAnii:SII 91l. Y fnjury i SCHEDUL.EDAIJTOS j """"... COMBINED SINGLE UMrT 1,, (Ea pcddent) s (Per person) HIRED AUTOS BODILY INJURY (Puacdder.t) NON-owNED AUTOS s - PROPERT'I' DAMAGE (Peracddent) s ~:"'"""' I s. A!JTO OTHER THAN EAACC s AUTO ONLY: AGG "'-'-VIl ov ~OCCUR u CLAUAS UAOE s ~ I no. I each R oeouc'tlble s D WORKERS COMPEHSA'OON AND.. lxi. lo;!lt EMPLOYERS" Lli\BIUT'I' 1 Is M«PROPRIETORIPAIUNERIEXECUTIVE OFACER/MEMBE;f\ EX.Ct.UDED1., OO.<A.<O is.. " ' n>.o<.<. Pn»r.v...,,... Is -~ OniER liixc:lusions AODE::D IRe: D I FW International Airport contract #95225 Taxiway "k" Reconstruction ~roject:3121 P# ! \h bm ~ w': 11.11JI1 I ~nltlll... s s '* ' 's Granite Construeti.on, Co. p.. BOX 54 wauonville: CA 9511~'2.4 '25 \~ ~I>N'tOP~~b'r:o'&CiGDLb~'WL-.;,'a'~llm~-...;.--.-l \ DATE 'nter.eop, i\i \S3U\KG lnsui'.el\ Wl\.1.. 'EH.t)O.VO~ TO 1U.Il. --tla.'ts 'M'IlT"rat ttqllce 'TO "t'he. cam.rca."re HOlt)~ ttametl 'TO 'ne. \.SFT, aur l"aluj~ "TO oo.so S.tW.l.. _ 1VKI:St;. tid 8UGA.'T\ON OR. l.l.a.l'mu't'( '1" A!«~ U"f'(RI"'OE ~ 1TS ol.gekl's OR ( -'.,.. l. u. (. 1)1 '"'"'"'' ' sltlll..., ~ d 1/U F

72

73 ROGER M. YALE ATTORNEY AT LAW 1512 E. McKinney St., Suite 11 DENTON TEXAS 7629 (94) Metro (94) Fax (94) March 2, 27 VIA CERTIFIED MAIL# Carmen Llerena 4213 Pampas St Dallas, Texas RE: Termination of Employment; Dear Carmen: I regret to inform you that effective immediately your employment with North Texas Trucking, Inc., has been terminated because of job abandonment. We have attempted to work with you the last several months with regard to your job, but it has become clear that you do not intend to return to your job and have not offered a doctor's excuse for your absences. The company, because of your longstanding service, has continued your salary until this week but can no longer afford to do the same. At one time, you had made a claim that you were injured on the job and we attempted to work with an attorney who has subsequently told us he has been discharged by you. We have not been contacted by any additional attorneys nor have we received any acceptable documentation to support your absence from employment. David Davila, as President of North Texas Trucking, Inc., and the staff wishes you well in the future, but cannot employ you n you fail appear at work for as many months as you have failed to appear. cc: David Davila Det. NTT EXhibit14 yi'c 'fla<t(ro

74

75 (: Plastic & Cosmetic Surgery Center Of T~xas Dr. Robert D. Wilcox, :,M.D. Progress Notes t Date: ~ NamJ{2.JVV/VJCc,Can~ ' I d.-/8/o Co 1 w((.s ('o'}t-<{f ~ c.tfc.. Sk- h~ ~ ~o Ott o»x~ 'Tt 'N ~ h_oj\a-cl (h 4_~ ~ ' tu j_c{; eli s (.Q'wt{-cU- ' C:~fC_ i t 17/JAVVI/1/V""P '~ Jf. h~@m_~. 1>- (. v ~-- -

76 .. Plastic & Cosmetic Surgery Center Of Tex~s Dr. Robert D. Wilcox, M.D.. progress Notes NOV D~:...,.NameGfii. AVr)(kJ ~~- -~()~\ Li \ r_j (J~ ~) ~ ~or~ <ffi)ql ~- ~. fjf(l~, Slc::tlQO io Aw:.~ 1o k~ cr R- ~ 1o 4'- ~~:.- '-C-~.... ~ :h~)~- -. ~....

77 . '(~ ' '~ Plastic & Cosmetic Surgery Center Of Texas... Dr. Robert D..Wilcox, M.D., DEC Progress Notes... '... /(yft

78

79 83. South Hainpton, Suite B Da&s, Texas 7528 Tel: :ZI4-9JfB-5I()() Fax: IIl 5/22/27 FINAL NARRATIVE Patient Carmen Uerena SSN: DOB: 8/2/ Pampas St. Dallas, Texas Employer North Texas Trucking Inc. P.O. Box Dallas, Texas ' DOl: 8/7/26 Previ.ous History Summary Injury Category: Work Medication: Through the course of care, Mrs. Uerena was prescribed multiple medicalions. At the time of her release, she was only taking OTC pain control medication. Illness: None were disclosed Activities of Daily LMng: At thr onset of her condition, Mrs. Uerena had multiple problems with activities due to -the pain, numbness, and weakness in her hands. Current History Current Medication: OTC. Illness: None disclosed. Activities of Daily LMng: Mrs. Uerena has been able to carry out her activities of daily living, self-care, etc., while she still has some difficulty with forcefil! gripping, and with lilting heavy objects. Patient's complaint- Previous Findings Right wrist and hand pain, swelling, numbness and tingfing. At the time, her complaint was getting progressively worse. She was having trouble with dropping objects and not having full control over her hand. She indicated that the pain would shoot into the hand and proximally to the forearm. Handling small objects, and typing provoked the pain. Left hand and wrist pain. At the time, she stated that she was having some tingling and some numbness, but not as much pain as the other side; Current Findings The right wrist and hand pain improved signilicantly. She rates her hand problems as occasional and mild. In rare occasion she feels the discomfort as moderate. She still has not recovered full strength in the hand, but she is able to carry out her activities of daily living and has started typing a few minutes at a time; TEL: :2. t 4~943. 1

80 Final Narrative page2of3 Carmen Llerena The left wrist and hand complaints reduced to occasional and mild. The surgical scar gets tender, more so than the right one, but overall the left wrist also is reported as having improved significantly. Diagnostics carmen Uerena underwent an initial course of therapy in hopes that her symptoms and dysfunction would reduce and perhaps resolve. Unfortunately her symptoms remained. AN She was referred to Dr. Alan Dulin for consultation. Dr. Dulin indieated that she should continue with Mobic and placed her on bilateral wrist splints. He also prescribed Darvocet for pain control. Dr. Dulin felt that conduction studies were necessary and on 1/1/6 an EMG was performed and the findings confirmed bilateral carpal tunnel syndrome. On 11/1/26 Dr. Wicox performed surgery on the right hand. On 12/8/26 Dr. Wilcox performed surgejy on the left hand. :. Inspection Inspection revealed: Well healed surgical scars on both hands. Palpation Palpation revealed:. Tenderness is present on the right hand at the surgical scar and mildly into the thenar eminence. Tenderness is present on the left hand at the surgical scar. Orthopedic- Previous Findings nnel's and Phalen's were both positive bilaterally with the right hand being worse than the left. Orthopedic- Current Findings Neilhernnel's nor Phalen's are present Neurological Upper Extremity Motor Legend Level Rating Comments C5 Left: 5 O=no eyidence of conbildiity Should Abel Right: 5 1=sfightcontraet1ltywith no) mo6on C5/C6 Left: 5 Elbow Flex Right: 5 Z..motion with gravity efl!nin~ C6 Left: 4 Wrist Ext Right 4 3=motion against gravity' C7 Left: 4 4=molion agaj('i!ot -glallity with $OI"i''I Wrist Flex Right: 4 resistance C8 Left 4 StmotJon agahst grnity with fulf Finger Rex Right 4 re.- T1 Left: 4 FingerAbd Right 4

81 Final Narrative page3of3 Carmen Llerena Level Left CS/6 2 C6. 2 C7/8 2 Right Upper Extremity OTR's Legend 'Q:=absootwith &i:laio(io!t<letia: 1=h~ 2 2 """"'"""""' """"""" 2 ~with~cbntl$ ~WIIbsustlirteddom~ Level NAD c NAD :C NAD C8 NAD NAD T1. Upper Extremity Oennatomes Bilateral carpal tunnel syndrome Pain in joint involving hand ~;To ft-'j{i{ T':Jwr E-~N T.-. P L A N -.. ~= r.. ~-:: , 1. cannen Uerena has completed all recommended frealment that would result in significant improvement to her condition. 5/22/27 Change in vocation or vocational f)'aini_ng Is advised.

82 '. ~ectivepleqse Indicate precisely tt1"e area l'nipte>ms 1Jl.'iin9'.. X' cjti the ~es PeJow. (" pot' favor precisamenle e1 area ~rc -~ duele con una.. x: en!os retratos i\. f -. les/nc>tas: ---' Subjective ] See Initial Report.. >atienyepo_rts: l,.. L EJ Pa1n~ ~- Stiffn<~SS Headache Sleep Disturbance Radiating.~. t=jjf..~:-'.tsmptqms. present today or since your tam :tt~~.i1~t 1 Syntomas pre.sente hoy o desde1su ~uliimr wsila! Pain I Dolor stiffness liiez-o o infte>tible Headache I Dolor de <:abi!zll D Sleeping Dlf'fit;:ully J DlfJC\IIb.d pata donnlr Depressfo':JI Depresion J Anxiety I Ancioda.cl Duties Under Duress/ Condiciones de Trabajo Are you working, taking eare of children, or going to school fn pain? DYe~ ONo Esta tmbajando. culdando nlnos, o "'tendiendo la a:seuela con dolor? DYes ONo Ob]i>Ctivl> Posture: GaW._~====~---~~~~~ Muscle spasms C T L Foollions C T l Swelling OC OT OL Restridion oftnavement C T "!. Trig Points: Bruising: 1. e::;dcu:::res=-=98=94=; ""98"'94=1-l Extremity: vvcl rs "8.--'"llllo:a=n=u=a l P=~:Q:::c=. \djuslments: Spinal Regions: Upper Extremity: Lower Extremity: Other.: -: j '"'hod: t.lanu~ _ op "fable lnstrum~nt Flexlon..Oistractipn :I N 1 l)tled r Separate and distinct evalu\lfion containing 2 of 3 ;omponents: >iislol)'. A-ssessment?ecfslon making Oti>cuSed Uml!ed I:;Jslmple Oexpanded expanded Ocompte< DE & M Phase I The@pv!Modatiliis Gnats: Promote anatomical rest. diminish musc:utar spasm, 1eAupe tnftamrnation, alfevlate.. "pain. B. lee or Moist Heat tj Q. Mechanical Tradion ~ ~ Electrical Stimulation ~ ~Ultrasound ~ ""\ Paraffin. ~718 Phase II Modalities Goo11s: Increase!he range of pain fme motion and mlnimi~e de-conditioning o s p Ofagn.osis 1.. '3 :)<{.::> 2. 3, ~cedre Phse Ill Supervised Acliva Rehabilitation Gaa)S: Restore strj191h and endurance pl\ysjeaiwc>dc capacity. N. CPTCode9711 Therapeutic pro!'edure (exercise to develop strength} Unifs: esislance strength training {elastic} Q G ball Core strength protocol with resls ce. o Progress strengthening protocol. with weight chines. o Aerobic ac!ivily.... : ; c- 2'7 - )1 tt1.j t-_u 1. La~tName/Apetiido: UJ'tY\JAJ. First Name/Nomb~: ~ Slgnature/Fiima: Q. CPT COde 9753!1 Thel3pautic aolivilies MMI Date: Assessment.,..Progressing as expected ffi' Progressing slow but steady Progressing faster than expected Immediate improvement wiut'rx No improvementyoilhoutcant'd Rx Complicating Fact~:~---- Pre-,existing Re-injury. OVeru>;e I Fatigue Age.. Gender G Cbronicity Newinjury Instability. P~egnancy Strnerlmposed injury Plan Supports = Supplements. "' Continue Rx plan DiS~X>ntinue Rx pl"a_n Change Rx plan (see new.rx ptao) Referral: Special o";ag:-::-nosti-,.es,...:=----- (one on one) ta. ve functiamll pelformance '----- Uni1s: Roar mat ching activefpassive a Gym ball Core ength protocol a Box.liffing/ jol> sp Jcstrengthenlng Q Body part specific strengthening _e. Self care/ h~anagement!!zm Orthotic: filling Eva{u.atfons and Reports_ Actlve Gc>.als: Increase the range of p~ln-free motion and minimize de-conditioning. ~ Increase Strength and endurariee la, Improve ROM and flexibility C ' Improve functional perfunnance Increase Core stability Improve CarcliovascuJar capacity 998 bwc lns..:..oce Fonns FC~e..

83