REVERSE and RENDER; Opinion Filed November 9, 2012.




                                               In The
                                niirt nf Appiats
                         iftI! District rif &cxas at DalLas
                                        No. 05-l0-01061-CV


                        NORTH TEXAS TRUCKING INC., Appellant



                                 CARMEN LLERENA, Appellee


                       On Appeal from the 116th Judicial District Court
                                    Dallas County, Texas
                             Trial Court Cause No. 07-10582-F


                              MEMORANDUM OPINION
                        Before Justices Moseley, Lang-Miers, and Murphy
                                   Opinion By Justice Moseley

       Carmen Lierena contends she was injured while employed by North Texas Trucking, Inc. and

filed this lawsuit to recover damages for negligence and fraud. A jury found North Texas liable on

those causes of action and awarded Lierena damages. The trial court rendered judgment on thejury’s

verdict and overruled North Texas’s motions for judgment notwithstanding the verdict, to modify

the judgment, and for a new trial. North Texas appeals, contending there is no evidence to support

the jury’s findings of negligence and fraud.

       The background of the case and the evidence adduced at trial are well known to the parties;

thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue

this memorandum opinion. TEx. R. App. P. 47.2(a), 47.4. We reverse the trial court’s judgment and
render judgment that Lierena take nothing from North Fexas.

          North Texas challenges the legal sufficiency of the evidence to support the jury’s fraud

finding. Lierena alleged that North 1xas fraudulently induced her to accept a job as bookkeeper

and office manager by falsely representing that ii had workers’ compensation insurance. North

Texas argues there is no evidence Llerena’s reliance on the representation that North Texas carried

workers’ compensation insurance caused her to suffer an injury.

          An essential element of a fraud claim is that the plaintiff was injured as a result of relying

on the misrepresentation See Fornev 921 Lot Dev. Partners I, L.P v. Paul Taylor Homes, LkL, 349

S.W.3d 258, 270 (Tex. App.—Dallas 2011, pet. denied). Damages for fraud are measured by either

the benefit-of-the-bargain measure or the out-of-pocket measure. See Baylor Univ. v Sonnichsen,

221 S.W.3d 632, 636—37 (Tex. 2007);       Formosa   Plastics Comp. u Presidio Eng ‘m’s & Contractors,

Inc.,   960 SW.2d 41, 49 (Tex. 1998). Out-of-pocket damages, which derive from a restitutionary

theory, measure the difference between the value of that which was parted with and the value of that

which was received.” Baylor Uni’c, 221 S.W.3d at 636. “Benefit-of-the-bargain damages, which

derive from an expectancy theory. evaluate the difference between the value that was represented

and the value actually received,” Id. Both measures of damages are determined at the time of the

sale or transaction. See ArthurAndersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 817 (Tex.

1997).

          There is evidence Lierena accepted thejob with North Texas thinking she was getting abetter

job. She testified that before accepting the job, she was working as a loan officer and had all the

benefits North Texas offered her, including workers’ compensation insurance. A few days after her

injury, North Texas told her it did not have workers’ compensation insurance. North Texas paid her

full wages for approximately two months after she left work for her first surgery. North Texas paid




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her sixty percent of her wages for another three months. After that, North Texas terminated her

 employment.

        There is no evidence in the record of out-of-pocket damages, that is the difference between

the value Llerena parted with and the value she received in accepting the job. Nor is there any

evidence in the record of benefit-of-the-bargain damages Lierena presented no evidence of the

amount of workers’ compensation benefits she would have received for her injury if North Texas

had carried workers’ compensation insurance.

        Citing two companion cases out of the El Paso Court of Appeals, Lierena argues she was not

required to prove what she would have received had North Texas carried workers’ compensation

insurance. See Rene/IcialPers. Servs. of Thx.. inc.   i   Porras, 927 S.W.2d 177, 190 (Tex. App.—El

Paso 1996), vacated pursuant to settlement, 938 S.W.2d 716 (Tex. 1997); Beneficial Pers. Servs.

of Thx., Inc.   i   Rev, 927 S.W.2d 157, 170 (Tex. App.—E1 Paso 1996). vacated pursuant to

settlement, 938 S.W.2d 717 (Tex. 1 997). In both cases, the plaintiffs asserted that Beneficial

fiaudulently induced them to enter into employment contracts by promising they would receive

workers’ compensation benefits equal to those available under Texas law without the intention of

performing that promise. Porras, 927 S.W.2d at 186; Rey, 927 S.W.2d at 168. in both cases the

plaintiffs offered evidence of the benefits they would have been entitled to under workers’

compensation law and that they “received significantly less in monetary benefits than [they] should

have received under Texas law.” Porras, 927 S.W.2d at 181, 190 (emphasis added); Rev, 927

S.W.2d at 163, 170 (same).

       Here, however, Lierena presented no evidence of what she would have received had North

Texas provided workers’ compensation insurance. Thejury found Llerena’s damages resulting from

the occurrence in question were medical expenses in the past, lost earnings in the past and in the
ftiture, and coinpensatorv damages in the Ixist:’ including “emotional pain and sutièring.

inconvenience, mental anguish, loss of enjoyment of life, and other non—pecumarv losses.’ But

without evidence ol what Lierena’s workers’ compensation benefits would have been, there is no

evidence her reliance on the representation about workers’ compensation insurance caused her to

lose earnings, medical expenses, or the non-pecuniary losses found by the jury.
                                                                          1

            Because there is no evidence Llerena’s reliance on the misrepresentation caused her fraud

damages, the jury’s fraud finding does not support the judgment. We need not address whether the

evidence supports the other elements of fraud. We sustain North Texas’s second issue.

            North Texas next challenges the legal sufficiency of the evidence to support the negligence

2 Lierena asserted that North Texas breached a legal duty to provide her with a safe working
finding.

environment and she suffered carpal tunnel syndrome as a result of excessive typing and paper

handling she was required to perfbrm as a bookkeeper and secretary for North Texas.

            Llerena testified she worked at North Texas for four years before her injury and had no

previous medical conditions. She normally prepared fifteen to twenty invoices on Mondays by

typing entries from delivery tickets into a computer software program. She also had to total the

invoices using a ten-key machine and she would handwrite 100 to 120 checks on Saturdays. Lierena

testified that her office equipment and furniture were old and uncomfortable and her complaints to

North Texas about the equipment and furniture were ignored. On one Monday in 2006, she was




      ‘Neither measure of fraud damages was submitted to the jury. North Texas objected to the damage question and argued the court should submit
separate damage questions for fraud and negligence. North Texas adopted a co-dcfertdant’s objection that the damage question must be segregated
because the cattses of action have separate measures ofdamages. Thus. Lierena did not obtain ajury finding on fraud damages caused by her reliance
on the misrepresentation. Because North Texas objected to the omission ofa question on fraud damages, we may not deem a finding on this element,
See Ttx. R. Civ. P. 279: h’s. Dept. ofl}’ansp. i: Gtitierrc’z, 284 S.W.3d 848. 850 (‘fex. 2009) (per curiam); State Dept. ofHigIiwat:c & Pub. Transp.
v. Payne, 838 S.W.2d 235.241 (Tex. 1992) (reversing and renderingjudgment where defendant objected to omission of element ofplaintiff’s claim).

       North Texas ts a nonsubscrtber to the Fexas Workers’ Compensation Act. See TEx. LAB. Cort ANN. § 406.002(a) (West 2006) (employer
may elect whether to obtain workers’ compensation coverage). Thus, to recover damages for personal injury, Llerena was required to prove negligence
of the employer or of an agent or servant of the employer acting within the general scope of the agent’s or servant’s employment, Id. § 406.033(d).




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required to prepare fitly invoices late in the day without rest. One invoice took more than three

hours to complete. When she left work that day, her wrists and hands were numb, painful, and

swollen. She was later diagnosed with carpal tunnel syndrome and underwent               surgery   on both

wrists, tier condition did not improve significantly. One of her doctors testified that the repetitive

trauma resulting from typing and using her hands at work caused her carpal tunnel syndrome.

        lo support her negligence claim, Llerena was required to present evidence of a legal duty,

breach of that duty, proximate cause, and damages. See Kivger Co. v. Eiwood, 197 S.W.3d 793, 794

(Tex. 2006) (per curiam). Proximate cause comprises two elements: cause in fact and foresecability.

Ei’cel (np.   i:   Apodaca, 81 S.W.3d 817, 820 (Tex. 2002). The test for cause in fact is whether the

act or omission was a substantial factor in causing the injury “without which the harm would not

have occurred.” Id. A finding of cause in fact cannot he supported by “mere conjecture, guess, or

speculation.”      Doe   i:   Boys Clubs ol Greater Dallas, Inc.. 907 S.W.2d 472, 477 (Tex. 1995).

        There is evidence in the record that Llerena’s carpal tunnel syndrome was work related, but

there is no evidence that any modification of her work environment or work requirements would

have prevented or lessened her injury. See Apodaca, 81 S.W.3d at 822 (essential defect in plaintiff’s

evidence was that while it showed employer should have used other practices and that plaintiffs

injuries were work related, none of it showed that had employer used those other practices, plaintiff

would not have been injured) Patino v. complete Tire, Inc., 158 S.W.3d 655, 66 1—62 (Tex.

App.—Dallas 2005, pet. denied) (evidence ofworkplace injury is no evidence that, if employer “had

done something different,” plaintiff would not have been injured or would not have received the

specific injuries he claimed). In her appellate brief, Lierena speculates about several things North

Texas could have done, such as hiring another billing person during peak seasons, providing her with

better office equipment and furniture, mandating rest periods, or staggering her work periods to




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 allov her hands to rest. but she presented no evidence at trial that had North l’exas (lone any otthese

 things she would not have been injured. See Apodaca. 81 S.W.3d at 82 1

         Llerena attempts to distinguish Apodaca because that case involved back and neck injuries

 in addition to carpal tunnel syndrome injures to the plaintilis wrist. This is not a meaningful

 distinction. Apodaca sets out a categorical rule of law that some negligent act or omission by the

 employer must proximately cause the employee’s injury; this rule is not dependent on the type of

 injury. Sec Apodaca, 8 1 S.W.3d at $2 I —22 (concluding there was no evidence plaintiff would not

have been injured if employer had performed symptom surveys, modified the work environment,

required fewer repetitions per hour, provided a more comfortable work station, or provided

additional equipment). Regardless of the type of work-place     injury, a   plaintiff is required to prove

the employer’s breach of a legal duty owed to the employee was a proximate cause of the injury. See

Leitch v. Thrnsbi’, 935 S.W.2d 114, 118—19 (Tex. 1996).

        In addition, the court in Apodaca pointed out the medical evidence relating to the carpal

tunnel syndrome in Apodaca’s wrist in its causation analysis:

       The doctors agreed that at least part of Apodaca’s injuries, specifically his wrist
       injui-y, was work related. Two doctors testified that the motions demanded by
       Apodaca’s work environment caused carpal tunnel syndrome to develop in
       Apodaca’s wrist; another stated that he believed all of Apodaca’s injuries were
       caused by his job. But no doctor linked those iijuries to anything Excel did orJiiled
       to do. While the evidence supports the conclusion that at least some of Apodaca’s
       injuries were work related, it fails to establish that Apodaca would not have been
       injured but for any negligent conduct by Excel.

Apodaca, 81 S.W.3d at 822 (emphasis added).         The evidence here is similar; no doctor linked

Llerena’s injury to anything North Texas did or failed to do.

       Llerena argues Apodaca was wrongly decided and imposed a new standard of “actual cause.”

We disagree Apodaca restated and applied established Texas law on cause in fact—the test is
            .
whether some negligent act or omission by the defendant was a “substantial ftctor in bringing about

injury” and without which the harm would not have occurred. See Boys (.7ubs. 907 S.W.2d at 477;

Havner    E—Z Mart Stores, Inc., 825 S.W.2d 456, 45859 (Tex. 1992); Brown v. Edwards Transf’r

Co 764 SW2d 220, 223 (Tex. 1988); Bell        i’. Campbell,   434 S.W.2d 117, 120 (Tex. 1968); Carei

v Pure Distrib. C’orp., 124 S.W.2d 847, 849 (Tex. 1939). Evidence that an employee’s injuries were

work related is insufficient to establish that the employee would not have been injured but for any

negligent act or   omission   by the employer. .4podaca, 81 S.W.3d at 822. Otherwise, employers

would become insurers of all “work related” injuries to their employees. But that is not the law. See

Elwood. 197 S.W.3d at 795 (an      employer is not   an insurer of its employees’ safety); Leitch, 935

S.W.2d at 117 (same); Exxon Coip. v. Tidwell, 867 S.W.2d 19,21 (Tex. 1993) (same).

       We conclude there is no evidence that North Texas’s negligence was a cause in fact of

Lierena’s injuries. We sustain North Texas’s first issue. Based on our resolution of North Texas’s

first two issues, we need not address its remaining issues. See TEx. R. APP. P. 47. 1.

       Because there is no evidence to support essential elements of the fraud and negligence

findings, there is no evidence to support the trial court’s judgm iLccordingly, we reverse the trial
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court’s judgment and render judgment that Lierena taknothing.
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                                                      /JIM,IQ(OSELEY
                                                      -}tTST1CE



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                                nurt uf Aprahi
                        fift1i Oi;Irirt uf Jixi at Oa11wi

                                       JUDGMENT
NORTH TEXAS TRUCKiNG, INC.,                        Appeal from the 11 6th Judicial District
Appellant                                          Court of Dallas County, Texas. (Tr.Ct.No.
                                                   07-1 05X2-F).
No. 05—10—01061 —CV          V.                    Opinion delivered by Justice Moseley,
                                                   Justices Lang-Miers and Murphy
CARMEN LLERENA, Appellee                           participating.


        In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and judgment is RENDERED that Carmen Lierena take nothing from North Texas
Trucking, Inc. It is ORDERED that appellant North Texas Trucking, Inc. recover its costs of this
appeal from appellee Carmen Llerena. It is ORDERED that the clerk of the trial court release the
full amount of the cash deposit in lieu of supersedeas bond to the person who made the deposit.


Judgment entered November 9, 2012,
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                                                  WVIMOSELE’’
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