                                                                     FILED
                                                                     15-0729
                                                                     11/10/2015 2:13:55 PM
                                                                     tex-7766971
                                                                     SUPREME COURT OF TEXAS
                                                                     BLAKE A. HAWTHORNE, CLERK



                        No. 15-0729
                                  IN THE
                          SUPREME COURT OF TEXAS


                             DANIEL E. ARNOLD,

                                  Petitioner

                                      v.

                             GERARDO GONZALEZ,

                                 Respondent

  Appeal from the Thirteenth Court of Appeals, No. 13-13-00440, and the 398th
       District Court of Hidalgo County, Texas, Cause No. C-1442-11-I




                            PETITION FOR REVIEW



Wade C. Crosnoe                            Robert E. Valdez
State Bar No. 00783903                     State Bar No. 20428100
THOMPSON, COE, COUSINS & IRONS, L.L.P.     Jose “JJ” Treviño, Jr.
701 Brazos, Suite 1500                     State Bar No. 24051446
Austin, Texas 78701                        VALDEZ, JACKSON & TREVIÑO, P.C.
Telephone: (512) 703-5078                  1826 North Loop 1604 W, Suite 275
Facsimile: (512) 708-8777                  San Antonio, Texas 78248
E-mail: wcrosnoe@thompsoncoe.com           Telephone: (210) 598-8686
                                           Facsimile: (210) 598-8797

                    Counsel for Petitioner Daniel E. Arnold
                          IDENTITY OF PARTIES AND COUNSEL

1.     Petitioner/Appellant/Defendant Daniel E. Arnold

       Trial and Appellate Counsel:

       Robert E. Valdez
       Jose “JJ” Treviño, Jr.
       VALDEZ, JACKSON & TREVIÑO, P.C. 1
       1826 North Loop 1604 W, Suite 275
       San Antonio, Texas 78248
       Telephone: (210) 598-8686
       Facsimile: (210) 598-8797
       E-mail: revaldez@vjtlawfirm.com
       E-mail: jtrevino@vjtlawfirm.com

       Appellate Counsel:

       Wade C. Crosnoe
       THOMPSON, COE, COUSINS & IRONS, L.L.P.
       701 Brazos, Suite 1500
       Austin, Texas 78701
       Telephone: (512) 703-5078
       Facsimile: (512) 708-8777
       E-mail: wcrosnoe@thompsoncoe.com




1
  Mr. Valdez and Mr. Treviño joined their current law firm at the conclusion of the trial court
proceedings. They were formerly with the law firm of Ray, Valdez, McChristian & Jeans, P.C.

                                               i
2.   Respondent/Appellee/Plaintiff Gerardo Gonzalez

     Trial and Appellate Counsel:

     John G. Escamilla
     ESCAMILLA LAW FIRM
     1416 Dove Avenue
     McAllen, Texas 78504
     Telephone: (956) 618-4999
     Facsimile: (956) 618-4997
     E-mail: john@escamillalawfirm.com

     Arturo Martinez
     LAW OFFICES OF ARTURO MARTINEZ
     414 S. Cage Boulevard
     Pharr, Texas 78577-5443
     Telephone: (956) 781-6203
     Facsimile: (956) 781-6204
     E-mail: art@amtzlaw.com

     Appellate counsel:

     Brandy Wingate Voss
     SMITH LAW GROUP, P.C.
     820 E. Hackberry Avenue
     McAllen, Texas 78501
     Telephone: (956) 683-6330
     Facsimile: (956) 225-0406
     E-mail: brandy@appealsplus.com




                                      ii
                                              TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL .......................................................................... i

TABLE OF CONTENTS ................................................................................................ iii

INDEX OF AUTHORITIES...............................................................................................v

STATEMENT OF THE CASE ....................................................................................... viii

STATEMENT OF JURISDICTION ................................................................................... ix

ISSUES PRESENTED FOR REVIEW .................................................................................x

INTRODUCTION ............................................................................................................1

STATEMENT OF FACTS.................................................................................................2

   I.       The Ownership of the Accident Site and Equipment ...................................2

   II.      Gonzalez Is Injured While Working for A-W ..............................................2

   III.     Gonzalez Sues Arnold and Prevails in the Lower Courts.............................3

SUMMARY OF THE ARGUMENT ....................................................................................5

ARGUMENT .................................................................................................................6

   I.       The Act’s Exclusive-Remedy Provision Bars Gonzalez’s Claim.................6

            A.     The Governing Statute ...........................................................................6

            B.     The Court of Appeals’ Erroneous Waiver Holding ..............................7

            C. The Dual-capacity Doctrine ................................................................12

   II.      The Trial Court Abused Its Discretion by Refusing to Submit
            Arnold’s Requested Jury Question on the Right of Control .......................15

PRAYER .....................................................................................................................19

CERTIFICATE OF COMPLIANCE ..................................................................................20

CERTIFICATE OF SERVICE ..........................................................................................21

                                                             iii
APPENDIX

 Final Judgment ................................................................................................ Tab 1

 Charge of the Court ......................................................................................... Tab 2

 Court of Appeals’ Opinion and Judgment....................................................... Tab 3

 Texas Labor Code § 408.001 .......................................................................... Tab 4

 Defendant’s Requested Jury Question on Right of Control ............................ Tab 5




                                                        iv
                                            INDEX OF AUTHORITIES

                                                          Cases

Arnold v. Gonzalez, No. 13-13-00440-CV, 2015 WL 5109757
      (Tex. App.—Corpus Christi Aug. 28, 2015, pet. filed)... viii, 7, 10, 11, 12, 17

Austin v. Kroger Tex., L.P.,
      465 S.W.3d 193 (Tex. 2015) .........................................................................18

Braudrick v. Wal-Mart Stores, Inc.,
     250 S.W.3d 471 (Tex. App.—El Paso 2008, no pet.) ...................................17

Brown v. Bank of Galveston, N.A.,
     963 S.W.2d 511 (Tex. 1998) .........................................................................10

Budd v. Punyanitya,
     69 Va. Cir. 148, 2005 WL 4827403 (Va. Cir. Ct. Oct. 14, 2005) .................14
Burkett v. Welborn,
      42 S.W.3d 282 (Tex. App.—Texarkana 2001, no pet.) ......................... 11, 14
Butcher v. Scott,
      906 S.W.2d 14 (Tex. 1995) ...........................................................................18
City of Keller v. Wilson,
       168 S.W.3d 802 (Tex. 2005) .........................................................................11
Clayton W. Williams, Jr., Inc. v. Olivo,
      952 S.W.2d 523 (Tex. 1997) .........................................................................19

Cohn v. Spinks Indus., Inc.,
     602 S.W.2d 102 (Tex. Civ. App.—Dallas 1980, writ ref’d n.r.e.) ................13

Columbia Rio Grande Healthcare, L.P. v. Hawley,
     284 S.W.3d 851 (Tex. 2009) .........................................................................15

Darensburg v. Tobey,
     887 S.W.2d 84 (Tex. App.—Dallas 1994, writ denied) ................................11
Davis v. Sinclair Ref. Co.,
      704 S.W.2d 413 (Tex. App.—Houston [14th Dist.] 1985, writ ref’d
      n.r.e.) ..............................................................................................................13


                                                              v
Duncan, Wyatt & Co. v. Taylor,
     63 Tex. 645 (1885) ........................................................................................12

Entergy Gulf States, Inc. v. Summers,
      282 S.W.3d 433 (Tex. 2009) .........................................................................15

Exxon Corp. v. Tidwell,
     867 S.W.2d 19 (Tex. 1993) ...........................................................................18

Gore v. Amoco Prod. Co.,
      616 S.W.2d 289 (Tex. Civ. App.—Houston [1st Dist.] 1981, no writ) ........13

Holt v. Preload Tech., Inc.,
      774 S.W.2d 806 (Tex. App.—El Paso 1989, no writ)...................................13

Iliff v. Iliff,
         339 S.W.3d 74 (Tex. 2011) ...........................................................................12
Johnson Cnty. Sheriff’s Posse, Inc. v. Endsley,
     926 S.W.2d 284 (Tex. 1996) .........................................................................18
Long v. Turner,
      871 S.W.2d 220 (Tex. App.—El Paso 1993, writ denied) ............................12
McKelvy v. Barber,
     381 S.W.2d 59 (Tex. 1964) ...........................................................................11
Payne v. Galen Hosp. Corp.,
     28 S.W.3d 15 (Tex. 2000) ...................................................................... 13, 14
Port Elevator-Brownsville, L.L.C. v. Casados,
      358 S.W.3d 238 (Tex. 2012) ...........................................................................7

Ramirez v. Pecan Deluxe Candy Co.,
     839 S.W.2d 101 (Tex. App.—Dallas 1992, writ denied) ..............................13
Rivers v. Otis Elevator,
      996 N.E.2d 1039 (Ohio Ct. App. 2013) ........................................................14
Rodriguez v. Bd. of Dir. of Auraria Higher Educ. Ctr.,
      917 P.2d 358 (Col. App. 1996)......................................................................14




                                                       vi
State Dep’t of Highways & Pub. Transp. v. Payne,
      838 S.W.2d 235 (Tex. 1992) .........................................................................19

Suburban Hosp., Inc. v. Kirson,
     763 A.2d 185 (Md. 2000) ..............................................................................14

T.O. Stanley Boot Co. v. Bank of El Paso,
      847 S.W.2d 218 (Tex. 1992) ...........................................................................9

Tex. Workers’ Comp. Comm’n v. Garcia,
      893 S.W.2d 504 (Tex. 1995) .........................................................................15

Unigard Sec. Ins. Co. v. Schaefer,
     572 S.W.2d 303 (Tex. 1978) ...........................................................................7

W. Steel Co. v. Altenburg,
      206 S.W.3d 121 (Tex. 2006) .......................................................................1, 8

                                                      Statutes

Tex. Gov’t Code § 22.001(a)(2), (3), & (6) ............................................................. ix

Tex. Lab. Code § 408.001(a) ...............................................................................6, 11
Tex. Lab. Code § 408.001(b) .....................................................................................7

                                              Other Authorities

A. Larson, The Law of Workmen’s Compensation,
      Vol. 2A, § 72.81(c) (1988) ............................................................................14

                                                        Rules

Tex. R. Civ. P. 277 ...................................................................................................15

Tex. R. Civ. P. 278 ...................................................................................................15
Tex. R. Civ. P. 279 ...................................................................................................10




                                                          vii
                                  STATEMENT OF THE CASE

Nature of the Case          Premises-liability lawsuit against the president/owner of
                            plaintiff’s employer to recover for a workplace injury (CR 2
                            43-53, 66-67).

Trial Court                 398th Judicial District Court of Hidalgo County, Texas, the
                            Honorable Aida Salinas Flores, Presiding

Trial Court’s               After the trial court denied Defendant Daniel Arnold’s
Disposition                 Motion for Summary Judgment based on the exclusive-
                            remedy provision of the Texas Workers’ Compensation
                            Act, the case proceeded to trial (CR.54-62, 120). Based on
                            the jury’s findings on liability and damages, the trial court
                            signed a Final Judgment awarding Plaintiff Gerardo
                            Gonzalez $1,976,161.93 in actual damages, prejudgment
                            interest, and costs (CR.124-34, 168-72; Apx. 1, 2).

Parties in Court of         Appellant Daniel Arnold; Appellee Gerardo Gonzalez
Appeals

Court of Appeals            Thirteenth Court of Appeals at Corpus Christi/Edinburg

Court of Appeals’           In a memorandum opinion authored by Chief Justice
Disposition                 Valdez and joined by Justices Garza and Perkes, the court
                            of appeals affirmed. See Arnold v. Gonzalez, No. 13-13-
                            00440-CV, 2015 WL 5109757 (Tex. App.—Corpus Christi
                            Aug. 28, 2015, pet. filed) (Apx. 3). Neither party filed a
                            motion for rehearing or motion for en banc reconsideration.




2
  “CR” refers to the Clerk’s Record. Other abbreviations in this Petition for Review include
“RR” (Reporter’s Record), “Apx.” (Appendix to this Petition), “PEX” (Plaintiff’s Exhibit),
“DEX” (Defendant’s Exhibit), and “Ct. Ex.” (Court Exhibit). Although the deposition transcript
cited herein is labeled as a court exhibit, a video of designated parts of the deposition was played
at trial with the parties agreeing that the transcript and designation would be included in the
record in lieu of the court reporter transcribing the video testimony (11.RR.100-01). Cites to the
Reporter’s Record are in the following format: [volume number].RR.[page number].

                                               viii
                           STATEMENT OF JURISDICTION

      This Court has jurisdiction because (1) the court of appeals held differently

from prior decisions of other courts of appeals and this Court on questions of law

material to a decision of the case; (2) the case involves the construction of statutes

necessary to a determination of the case; and (3) the court of appeals committed

errors of such importance to the state’s jurisprudence that they require correction.

See Tex. Gov’t Code § 22.001(a)(2), (3), and (6).




                                         ix
                          ISSUES PRESENTED FOR REVIEW

       1.    Can an employee who is injured in a workplace accident, and who
recovers workers’ compensation benefits from his employer’s carrier, circumvent
the exclusive-remedy provision of the Texas Workers’ Compensation Act by suing
the employer’s president/owner in his alleged capacity as the premises owner
rather than as a co-employee? In other words, should this Court adopt the “dual
capacity” doctrine that has been overwhelmingly rejected by courts in Texas and
across the country?

      2.     Does a court of appeals err by holding that a co-employee/agent
waived his exclusive-remedy defense by failing to obtain a finding that he was
acting in the course and scope of his employment/agency when: (a) the plaintiff
never raised that argument in either the trial court or court of appeals; (b) the issue
was undisputed and the evidence conclusively established that fact; and (c) the
exclusive-remedy provision does not, by its express terms, require such a finding?

        3.    Can a trial court properly refuse to submit the defendant’s proposed
right-of-control question in a premises-liability case on the basis that control is
only relevant when there is evidence of an independent contractor’s involvement?
Isn’t right of control always at issue in premises-liability cases?

Unbriefed Issue

      4.    Can a defendant be jointly and severally liable under the
proportionate-liability statute for the portion of the plaintiff’s damages that the jury
finds were caused by the plaintiff’s employer, even though the plaintiff’s recovery
from the employer is barred by the Act’s exclusive-remedy provision?




                                           x
                                  INTRODUCTION

      This appeal arises from a (so far) successful attempt to circumvent the

exclusive-remedy provision of the Texas Workers’ Compensation Act (the Act).

After suffering a workplace injury and collecting workers’ compensation benefits

from his employer, Gerardo Gonzalez sued Danny Arnold—the president and

owner of Gonzalez’s employer—to recover for the same injury. Gonzalez argued

that his claim was not barred by the Act because he was suing Arnold solely in his

capacity as the premises owner.       Arnold responded that Texas courts have

overwhelmingly rejected this “dual capacity” theory of liability.

      Uneager to confront that issue, the court of appeals held that Arnold waived

his exclusive-remedy defense by failing to obtain a jury finding on whether he was

acting in the course and scope of his employment. The court so held even though

(1) Gonzalez never raised that waiver theory on appeal, (2) the issue was

undisputed, (3) the evidence conclusively established course and scope, and (4) the

exclusive-remedy provision does not, in any event, require such a finding. This

waiver holding conflicts with Western Steel Co. v. Altenburg, where this Court

reversed the same court for using similar logic to affirm a judgment against a

subscribing employer. Because the court of appeals erred in avoiding the dual-

capacity doctrine issue, the important question of whether that doctrine can open a

gaping hole in the Act’s exclusive-remedy provision is squarely before this Court.



                                         1
                             STATEMENT OF FACTS

I.    The Ownership of the Accident Site and Equipment

      This lawsuit arises from a workplace accident at a warehouse operated by A-

W in Weslaco, Texas (7.RR.6). The warehouse processes and packages farm

produce for shipping and sale (7.RR.74).

      Danny Arnold is employed as the President of A-W and owns the company

with his wife (7.RR.23-24, 48, 75, 90; 8.RR.13; 13.RR.36; PEX 1).         Arnold

individually owns the warehouse but leases it to A-W in exchange for annual rent

payments of $84,000 (7.RR.6-10, 20, 24-25). A-W is responsible for maintenance

and care of the property under the oral lease (7.RR26, 36-37). A-W also owns the

equipment in the warehouse, including the conveyor-belt system used to process

produce (7.RR.32; 8.RR.13; 18.RR.68; 19.RR.111).

II.   Gonzalez Is Injured While Working for A-W

      Gonzalez was hired by A-W in 2009 (14.RR.26-28). His job was to perform

maintenance on forklifts and to help Jesus Montelongo, another A-W employee

who maintained the conveyor-belt system (13.RR.36-37; 14.RR.22-24; 16.RR.66).

      On February 1, 2010, Gonzalez was helping Montelongo work on a section

of the conveyor belt that was not yet in operation (8.RR.38, 46; 13.RR.40;

16.RR.71-77). Arnold was not in the facility that morning and did not instruct

Gonzalez on what to do (8.RR.22; 13.RR.40; 16.RR.70-72). Although a guard



                                           2
would have been added to the conveyor belt once it was operational, the belt had

no guard at that time (8.RR.46).

       Gonzalez was aware that if he put his hand near a moving part in a conveyor

belt, it could get caught and he would be injured (16.RR.89-91; DEX 13-14).

Nevertheless, Gonzalez reached for a wrench that he claimed had fallen onto the

conveyor belt, without asking Montelongo to stop the moving conveyor first

(16.RR.80-86; 17.RR.21-22). Gonzalez’s right hand and arm were pulled into the

conveyor-belt rollers and injured (15.RR.12).

       Gonzalez was treated for a compression injury to and fractures in his right

forearm (11.RR.22). His medical care and indemnity benefits were paid by A-W’s

workers’ compensation carrier (6.RR.6-8; CR.66-67).

III.   Gonzalez Sues Arnold and Prevails in the Lower Courts

       After collecting workers’ compensation benefits, Gonzalez sued A-W’s

President and owner, Danny Arnold (CR.27-35). Gonzalez asserted premises-

liability claims based on Arnold’s alleged failure to maintain the property and

equipment that he owned and controlled (CR.47-49).

       The trial court denied Arnold’s motion for summary judgment based on the

Act’s exclusive-remedy provision (CR.54-81, CR.120). Before trial the parties

stipulated that (1) Gonzalez was acting in the course and scope of his employment

with A-W when the accident occurred, (2) A-W was a subscriber to the Act at the



                                        3
time, and (3) Gonzalez applied for and received workers’ compensation benefits

from A-W’s carrier (6.RR.6-8).

      At trial the court denied Arnold’s motion for directed verdict and charge

objections based on the Act’s exclusive-remedy provision (17.RR.78-80;

20.RR.17-18). Despite submitting premises-liability instructions to the jury, the

court also denied Arnold’s proposed jury question on whether he, individually,

exercised or retained control over the manner in which the work was performed

(CR.121-25; 20.RR.7-17; Apx. 5).

      The jury found that Gonzalez, Arnold, and A-W were negligent and

attributed responsibility as follows: 65% to Arnold, 20% to A-W, and 15% to

Gonzalez (CR.128-29; Apx. 2). The jury also awarded Gonzalez $2,615,000 in

damages (CR.130-31; Apx. 2). After signing a Final Judgment awarding Gonzalez

nearly $2 million, the trial court denied Arnold’s Motion for Judgment

Notwithstanding the Verdict (J.N.O.V. motion) based on the exclusive-remedy

provision, and Motion for New Trial (CR.168-94, 200-01; Apx. 1). The court of

appeals affirmed without reaching the merits of Arnold’s exclusive-remedy

defense, based on his “failure” to obtain a jury finding that he was acting in the

course and scope of his employment (Apx. 3).




                                        4
                           SUMMARY OF THE ARGUMENT

      This lawsuit is an end run around one of the pillars of the Texas Workers’

Compensation Act. The Act’s exclusive-remedy provision bars an employee from

suing a subscribing employer—and also the employer’s agents and employees—

for a work-related injury. It is undisputed that Gonzalez was working as an

employee of A-W when he was injured, and that Gonzalez received workers’

compensation benefits from A-W’s carrier. Nor is there any dispute that Arnold,

as A-W’s president, was an employee or agent of A-W. Under the Act’s plain

language, Gonzalez’s claim against Arnold is barred.

      The court of appeals dodged this issue by holding that Arnold waived his

exclusive-remedy defense because he failed to obtain a jury finding that he was

acting in the course and scope of his employment. But Gonzalez never raised that

argument in the court of appeals, the issue was undisputed and conclusively

established by the evidence, and, in any event, the statute’s unambiguous terms do

not require such a finding.    The court thus should have addressed the issue the

parties briefed, which is whether Arnold lost the protection of the exclusive-

remedy provision when he was sued in his allegedly separate capacity as the

premises owner. Because the statute contains no “dual capacity” exception and

courts in Texas and across the country have overwhelmingly rejected the dual-

capacity doctrine, this Court should rule that the doctrine is not the law in Texas.



                                          5
      The Court should also reverse and render judgment against Gonzalez for a

separate reason. Under this Court’s precedent, Arnold’s individual right-of control

over the premises was an essential element of Gonzalez’s claims.            Indeed,

Gonzalez pleaded, presented evidence on, and argued the control issue. Yet he

then successfully blocked Arnold’s request to submit that issue to the jury. When,

as here, an essential element of a claim is omitted from the charge and the party

without the burden of proof requests its submission, judgment must be rendered in

that party’s favor.

                                     ARGUMENT

I.    The Act’s Exclusive-Remedy Provision Bars Gonzalez’s Claim

      A.     The Governing Statute

      The Act’s exclusive-remedy provision states:

             Recovery of workers’ compensation benefits is the
             exclusive remedy of an employee covered by workers’
             compensation insurance coverage or a legal beneficiary
             against the employer or an agent or employee of the
             employer for the death of or a work-related injury
             sustained by the employee.

Tex. Lab. Code § 408.001(a) (Apx. 4).

      For our purposes, there are three crucial points about this statute. First, it

states that both the employer and the employer’s employees and agents are

protected. Second, it does not require that the employer’s employee or agent be

acting within the course and scope of that employment or agency.


                                         6
      Third, the statute contains no exception for when an employer (or the

employer’s agent or employee) is allegedly acting in a separate capacity—for

instance, as a premises owner. The statute applies to an employer and its agents or

employees, without qualification. The only exception in the statute does not apply

here. See Tex. Lab. Code § 408.001(b) (allowing recovery of exemplary damages

for the death of an employee). Accordingly, a dual-capacity exception cannot be

read into the statute. See Port Elevator-Brownsville, L.L.C. v. Casados, 358

S.W.3d 238, 241 (Tex. 2012) (concluding that the exclusive-remedy provision

barred a worker’s suit against his employer because the provision’s lone exception

did not apply); see also Unigard Sec. Ins. Co. v. Schaefer, 572 S.W.2d 303, 307

(Tex. 1978) (“When specific exclusions or exceptions to a statute are stated by the

Legislature, the intent is usually clear that no others shall apply.”)

      B.     The Court of Appeals’ Erroneous Waiver Holding

      Arnold raised the exclusive-remedy defense at every possible stage of the

trial-court proceedings: pretrial, trial, and post-trial (CR.54-81, 120, 187-94, 201;

17.RR.78-80; 20.RR.17-18). Despite this, the court of appeals held that Arnold

waived the defense by not obtaining a jury finding on whether he was acting in the

course and scope of his employment. Arnold v. Gonzalez, No. 13-13-00440-CV,

2015 WL 5109757, at *3-5 (Tex. App.—Corpus Christi Aug. 28, 2015, pet. filed)

(Apx. 3). But there is a series of problems with this holding.



                                           7
       The first is that Gonzalez never made this argument in his appellate briefing

or even in opposition to Arnold’s J.N.O.V. motion (22.RR.1-22).3 To be sure,

Gonzalez raised a separate waiver argument in his appellate brief, asserting that

Arnold should have obtained a jury finding that he was an employee or agent of A-

W. But the court of appeals did not affirm on that basis, presumably because (1)

the evidence conclusively established Arnold’s status as an employee and agent of

A-W (7.RR.23-24, 48, 75, 90; 8.RR.13; 13.RR.36; PEX 1 at 6), and (2) Gonzalez

had judicially admitted Arnold’s agent status (3.RR.20; CR.91). The court instead

affirmed based on an unraised argument, concluding that Arnold should have

obtained a finding that he was within the course and scope of his undisputed

employment/agency.

       This case is thus eerily similar to another exclusive-remedy case where this

Court reversed the same court of appeals. See W. Steel Co. v. Altenburg, 206

S.W.3d 121 (Tex. 2006). In Altenburg, the Thirteenth Court affirmed a judgment

against a workers’ compensation subscriber after concluding that the exclusive-

remedy provision did not apply because there was no evidence of workers’

compensation insurance. Id. at 123. But this Court reversed, noting that the

plaintiff had never disputed the existence of workers’ compensation insurance. Id.

at 124.    The Court also emphasized: “[A]bsent fundamental error, an appellate

3
 This citation is to the reporter’s record of the hearing on the motion. Gonzalez did not file a
written opposition to the motion.

                                               8
court should refrain from deciding cases on legal errors not assigned by the

parties.” Id. Yet the same court of appeals did the same thing here. In the words

of the late Yogi Berra, “it’s déjà vu all over again.”4

       The second problem with the waiver holding is that a jury finding is not

required when an issue is undisputed. T.O. Stanley Boot Co. v. Bank of El Paso,

847 S.W.2d 218, 222-23 (Tex. 1992). On the record before trial, Arnold’s counsel

proposed the following stipulations on his exclusive-remedy defense: (1) Gonzalez

was employed by A-W; (2) he was injured in the course and scope of his

employment; (3) A-W was a subscriber; (4) Gonzalez received benefits from A-

W’s carrier; (5) Arnold was an A-W employee; and (6) both Arnold and Gonzalez

were A-W employees (6.RR.6-8). Gonzalez’s counsel agreed to the stipulations

except the last two, explaining that he did not agree Arnold was an employee in all

respects (6.RR.6-7). Arnold’s counsel then requested clarification that “the issue

of Mr. Arnold being an employee of A-W Company, Inc. is the only disputed fact

in that regard?” Gonzalez’s counsel responded:               “The last two stipulations”

(20.RR.7-8).

       Based on these stipulations and Gonzalez’s clarification that the only

disputed fact was Arnold’s status as an A-W employee, the separate issue of

4
  See http://yogiberramuseum.org/just-for-fun/yogisms. As Yogi also purportedly stated,
however, “I really didn’t say everything I said.” See https://en.wikipedia.org/wiki/Yogi_Berra.




                                              9
whether Arnold was acting in the course and scope of his employment was not

disputed. This is consistent with the fact that Gonzalez never argued in the court

of appeals—or at any point in the trial-court proceedings—that Arnold was

required to prove or obtain a jury finding on the course-and-scope issue. The court

of appeals therefore erred in affirming based on the lack of a finding on this

undisputed issue.

       The third problem with the waiver holding is that no jury finding is required

when the evidence conclusively establishes the fact. See Tex. R. Civ. P. 279;

Brown v. Bank of Galveston, N.A., 963 S.W.2d 511, 515 (Tex. 1998). Arnold

presented undisputed evidence that the conveyor-belt system which injured

Gonzalez was owned by A-W, and that Arnold’s actions in setting up and

maintaining that system were taken in his capacity as the president of A-W

(7.RR.32, 52, 90; 8.RR.13; 10.RR.25-26, 64-65, 70; 18.RR.68; 19.RR.111; PEX

34).

       The court of appeals identified no specific conflicting evidence, instead

claiming that Arnold’s credibility was at issue because of allegedly contradictory

statements on the separate issue of whether he owned the warehouse. See Arnold,

2015 WL 5109757, at *4-5 (Apx. 3). But the undisputed testimony on the course-

and-scope issue came from multiple witnesses, including one of Gonzalez’s

experts. And the jury’s authority to make credibility determinations cannot be used


                                         10
as a guise to “ignore undisputed testimony that is clear, positive, direct, otherwise

credible, free from contradictions and inconsistencies, and could have been readily

controverted.” City of Keller v. Wilson, 168 S.W.3d 802, 820 (Tex. 2005).

      Finally, the exclusive-remedy provision expressly protects subscribing

employers—and their employees and agents—from common-law claims for work-

related injuries. Tex. Lab. Code § 408.001(a). Conspicuously absent from the

statute is any requirement that the co-employee or agent must have acted in the

course and scope.

      As the court of appeals noted, some courts have interpreted the statute to

protect only a co-employee for whose conduct the employer is liable under the

doctrine of respondeat superior—that is, an employee acting within the course and

scope of employment and in furtherance of the employer’s interests. Arnold, 2015

WL 5109757, at *2 (citing, e.g., Burkett v. Welborn, 42 S.W.3d 282, 288-89 (Tex.

App.—Texarkana 2001, no pet.); Darensburg v. Tobey, 887 S.W.2d 84, 86-87

(Tex. App.—Dallas 1994, writ denied)). But Burkett cited to Darensburg, which

in turn cited McKelvy v. Barber, 381 S.W.2d 59, 62 (Tex. 1964). McKelvy

addressed a prior version of the exclusive-remedy provision. The distinct issue in

McKelvy was whether a physician with his own medical practice was protected by

the exclusive-remedy provision as the employer’s agent/employee because the

employer’s workers’ compensation carrier paid him to treat the injured employee.


                                         11
Id. at 62-63. The right-of-control analysis in McKelvy should not apply when, as

here, it is undisputed that Arnold is the president and an employee of A-W. See

Long v. Turner, 871 S.W.2d 220, 224 (Tex. App.—El Paso 1993, writ denied)

(distinguishing McKelvy where both the plaintiff and defendant were regular

employees of the same employer).

      It is well settled that courts “have no right to engraft upon [a] statute any

conditions or provisions not placed there by the legislature.” Iliff v. Iliff, 339

S.W.3d 74, 80-81 (Tex. 2011) (quoting Duncan, Wyatt & Co. v. Taylor, 63 Tex.

645, 649 (1885)). The court of appeals erred by imposing a requirement in the

exclusive-remedy provision that the defendant employee/agent must be acting

within the course and scope.

      For each of these reasons, the court erred in holding that Arnold waived his

exclusive-remedy defense and, consequently, finding it unnecessary to address the

dual-capacity issue. Arnold, 2015 WL 5109757, at *5 n.4 (Apx. 3). That issue is

necessary to the disposition of this appeal and should be decided by this Court.

      C.     The Dual-capacity Doctrine

      The dual-capacity doctrine is the theory that a workers’ compensation

subscriber can be liable in tort to an employee “if it occupies, in addition to its

capacity as an employer, a second capacity that confers on it obligations

independent of those imposed on it as an employer.” Payne v. Galen Hosp. Corp.,



                                         12
28 S.W.3d 15, 20 (Tex. 2000). The doctrine is not supported by the governing

statute’s plain language, which contains no dual-capacity exception. Not only that,

courts in and outside Texas have overwhelmingly refused to adopt it.

      As this Court observed in Payne, “Texas courts of appeals have uniformly

rejected the dual-capacity doctrine.” Id. at 20 n.4. Those courts have done so in a

variety of contexts. See Ramirez v. Pecan Deluxe Candy Co., 839 S.W.2d 101,

107-08 (Tex. App.—Dallas 1992, writ denied) (strict-liability claim); Holt v.

Preload Tech., Inc., 774 S.W.2d 806, 807–08 (Tex. App.—El Paso 1989, no writ)

(professional-liability/negligence claim); Davis v. Sinclair Ref. Co., 704 S.W.2d

413, 415-16 (Tex. App.—Houston [14th Dist.] 1985, writ ref’d n.r.e.) (claim for

contractually-assumed liability); Cohn v. Spinks Indus., Inc., 602 S.W.2d 102, 104

(Tex. Civ. App.—Dallas 1980, writ ref’d n.r.e.) (strict-liability claim). One Texas

court has even rejected the doctrine in the premises-liability context presented

here. See Gore v. Amoco Prod. Co., 616 S.W.2d 289, 290 (Tex. Civ. App.—

Houston [1st Dist.] 1981, no writ).

      The doctrine has generally fared no better in other states, flourishing only

briefly in the late 1970s/early 1980s in two states: California and Ohio. See Holt,

774 S.W.2d at 807-08 (citing A. Larson, The Law of Workmen’s Compensation,




                                        13
Vol. 2A, § 72.81(c) (1988)). As noted in Payne, most other states have rejected

the doctrine, and that trend has continued since Payne.5

       The Payne Court found it unnecessary to decide whether to follow the

uniform Texas law and nationwide majority rule, concluding that the dual-capacity

doctrine would not have applied even if the Court were to adopt it. Payne, 28

S.W.3d at 20-21. Perhaps taking the wrong signal from this Court’s restraint, the

Texarkana Court of Appeals subsequently held that (1) the president of a

subscribing corporation could be liable for an employee’s work-related injury in

the president’s separate capacity as the premises owner, and (2) the discredited

dual-capacity doctrine supposedly was not implicated because the president was

not the employer. See Burkett v. Welborn, 42 S.W.3d 282, 288-89 (Tex. App.—

Texarkana 2001, no pet.). Gonzalez relied heavily on Burkett in the lower courts

and, like the Burkett court, insisted that his argument did not implicate the dual-

capacity doctrine. But the Payne Court rejected a similar argument. Payne, 28

S.W.3d at 20 (“Despite Payne’s protestations to the contrary, her argument raises

the dual-capacity doctrine.”).

5
  Payne contains a lengthy footnote discussing the majority of other jurisdictions that had
rejected the dual-capacity doctrine. 28 S.W.3d at 20 n.4. The authorities cited therein as
rejecting the dual-capacity doctrine are still good law. Furthermore, three of the four minority
jurisdictions listed in the footnote have either overturned the doctrine since Payne, or limited it
before or after Payne. See Suburban Hosp., Inc. v. Kirson, 763 A.2d 185, 202-03 (Md. 2000);
Rivers v. Otis Elevator, 996 N.E.2d 1039, 1043-44 (Ohio Ct. App. 2013); Rodriguez v. Bd. of
Dir. of Auraria Higher Educ. Ctr., 917 P.2d 358, 360-61 (Col. App. 1996). And at least one
jurisdiction not mentioned in Payne has since rejected the dual-capacity doctrine. See Budd v.
Punyanitya, 69 Va. Cir. 148, 2005 WL 4827403, at *3 (Va. Cir. Ct. Oct. 14, 2005).

                                               14
      In light of the obvious conflict between Burkett and the Texas cases cited

above, this Court should grant review and clarify whether Texas recognizes the

dual-capacity doctrine. Clarity on this issue is especially critical given our state’s

strong public policy favoring workers’ compensation coverage, see Entergy Gulf

States, Inc. v. Summers, 282 S.W.3d 433, 440 (Tex. 2009), and given that the main

inducement for employers to obtain such coverage is the protection of the

exclusive-remedy provision, see Tex. Workers’ Comp. Comm’n v. Garcia, 893

S.W.2d 504, 511, 521 (Tex. 1995). Court-created exceptions to the exclusive-

remedy provision will inevitably weaken employers’ incentive to purchase

coverage, thereby preventing employees from receiving immediate medical care

and compensation for injuries. Surely that is not what the Legislature intended.

II.   The Trial Court Abused Its Discretion by Refusing to Submit Arnold’s
      Requested Jury Question on the Right of Control

      A trial court “shall give such instructions and definitions as shall be proper

to enable the jury to render a verdict.” Tex. R. Civ. P. 277. “An instruction is

proper if it (1) assists the jury, (2) accurately states the law, and (3) finds support in

the pleadings and evidence.” Columbia Rio Grande Healthcare, L.P. v. Hawley,

284 S.W.3d 851, 855 (Tex. 2009). The same rules apply to jury questions. See

Tex. R. Civ. P. 278 (stating that the court shall submit the questions that are in the

form required by rule 277 and raised by the pleadings and evidence).




                                           15
      In support of his premises-liability claim, Gonzalez pleaded that Arnold had

control or a right of control over both the warehouse and the conveyor-belt system

(CR.45-48). The control issue was one of the main disputed issues at trial.

      Arnold testified that although he owned the warehouse, he leased the

property to A-W and A-W was responsible for its maintenance and care (7.RR.6-

10, 20-26, 36-37). He also presented evidence that A-W owned the equipment at

the property, including the conveyor-belt system, and that his actions in setting up

and maintaining that system were undertaken in his capacity as president of A-W

(7.RR.32, 52, 90; 8.RR.13; 10.RR.25-26, 64-65, 70; 18.RR.68; 19.RR.111; PEX

34). Furthermore, the jury heard testimony that Arnold was not at the warehouse

facility when the accident occurred (8.RR.22; 13.RR.40; 16.RR.70-72), and that

Gonzalez was under the supervision of other A-W employees (7.RR.68-69;

13.RR.39-40; 16.RR.71-77).

      For his part, Gonzalez questioned the existence of the oral lease at every turn

(7.RR.7-37; Ct. Ex. 1 at 6-7, 24, 32-34, 44). He also presented testimony that

Arnold goes to the warehouse regularly and that he, in his role with A-W,

authorized employees to move the conveyor belt (7.RR.51-52).              Moreover,

Gonzalez elicited testimony from Arnold that he designed the conveyor-belt at the

warehouse (7.RR.52-58; 8.RR.13).




                                        16
       Despite pleading and presenting evidence on the control issue, Gonzalez

inexplicably opposed Arnold’s proposed jury question on right of control

(20.RR.7-17).     Gonzalez’s counsel persisted in doing so after the trial court

observed that “there was a lot of evidence as to who was in control” (20.RR.8). He

ultimately persuaded the trial court to refuse the proposed question, despite the

court wondering whether Gonzalez should be concerned about reversal on appeal

(20.RR.14-17; CR.121-23; Apx. 5). Strangely, Gonzalez’s counsel then argued the

control issue during closing argument (20.RR.34-46, 80).

       Arnold’s proposed question was supported by the pleadings and evidence

and was based on Texas Pattern Jury Charges (TPJC) 66.36, which is the only

right-of-control question in the TPJC for common-law, premises-liability claims.

But the court of appeals concluded that the question was improper because TPJC

66.3 only applies in cases involving independent contractors. Arnold, 2015 WL

5109757, at *6-7 (Apx. 3) (citing Braudrick v. Wal-Mart Stores, Inc., 250 S.W.3d

471, 476 (Tex. App.—El Paso 2008, no pet.)).

       The court of appeals’ legal analysis of this issue is startlingly superficial.

The Braudrick case does not say that TPJC 66.3 only applies in cases involving

independent contractors, and the court in fact held that the trial court did not err in

submitting a question based on TPJC 66.3. Braudrick, 250 S.W.3d at 475-77.

6
 Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: Malpractice,
Premises & Products PJC 66.3 (2014).

                                            17
And although the comment to TPJC 66.3 indicates that the question is a predicate

to the liability question in common-law cases involving independent contractors, it

does not say that is the only appropriate use. TPJC 66.3 cmt.

      Right of control is an issue in every premises-liability case. See Butcher v.

Scott, 906 S.W.2d 14, 15 (Tex. 1995) (“In order to be held liable as an owner or

occupier, a party must be in control of the premises.”) It is also specifically at

issue when, as here, there is evidence that the owner leased the premises. See

Johnson Cnty. Sheriff’s Posse, Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex. 1996);

Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex. 1993). And “[o]nly an employer

that has control over the premises where the employee is injured has a premises-

liability duty to the employee . . . .” Austin v. Kroger Tex., L.P., 465 S.W.3d 193,

216 (Tex. 2015). Thus, to the extent the court of appeals suggested that right of

control is not at issue unless an independent contractor is involved, that ruling

conflicts with this Court’s precedent.

      If the court of appeals instead meant that the specific wording of TPJC 66.3

would not apply in other types of premises-liability cases, the court did not explain

why that is so or what wording in the question would need to change. Nor did

Gonzalez argue at the charge conference that the wording of the right-of-control

question would have to be altered (20.RR.7-17).         Indeed, Arnold’s proposed




                                         18
question did not mention anything about independent contractors at all (CR.121;

Apx. 5). Thus, the trial court erred by refusing to submit the control question.

      When, as here, the jury charge omits an essential element of a claim and the

party without the burden of proof objects or requests submission of that element,

judgment must be rendered in that party’s favor.            See, e.g., State Dep’t of

Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992) (rendering

judgment against plaintiff on premises-defect claim where the charge omitted an

essential element and the State objected to that omission by requesting a jury

question); see also Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527-30

(Tex. 1997) (reversing and rendering judgment against plaintiff based on his

failure to obtain jury findings on premises-defect or right-of-control elements).

Alternatively, this error at minimum necessitates a new trial.

                                       PRAYER

      Arnold respectfully requests that the Court grant review, reverse the lower

courts’ judgments, and render judgment that Gonzalez take nothing or,

alternatively, reverse and remand for a new trial or, alternatively, modify the Final

Judgment to delete the joint-and-several-liability provision. Arnold also requests

all other relief to which he is entitled, including an award of his costs.




                                          19
                                             Respectfully submitted,


                                             /s/ Wade Crosnoe
                                             Wade C. Crosnoe
                                             State Bar No. 00783903
                                             THOMPSON, COE, COUSINS & IRONS,
                                             L.L.P.
                                             701 Brazos, Suite 1500
                                             Austin, Texas 78701
                                             Telephone: (512) 703-5078
                                             Facsimile: (512) 708-8777
                                             E-mail: wcrosnoe@thompsoncoe.com

                                             and

                                             Robert E. Valdez
                                             State Bar No. 20428100
                                             Jose “JJ” Treviño, Jr.
                                             State Bar No. 24051446
                                             VALDEZ, JACKSON & TREVIÑO, P.C.
                                             1826 North Loop 1604 W, Suite 275
                                             San Antonio, Texas 78248
                                             Telephone: (210) 598-8686
                                             Facsimile:     (210) 598-8797
                                             E-mail: revaldez@vjtlawfirm.com
                                             E-mail: jtrevino@vjtlawfirm.com

                                             Counsel for Petitioner Daniel E. Arnold

                         CERTIFICATE OF COMPLIANCE

      This brief complies with the word limit of Tex. R. App. P. 9.4(i)(2)(D) be-
cause it contains 4,158 words, excluding the parts of the brief exempted by Tex. R.
App. P. 9.4(i)(1).



                                              /s/ Wade Crosnoe
                                              Wade Crosnoe


                                        20
                         CERTIFICATE OF SERVICE

      I certify that a true and correct copy of this Petition for Review was
served on Novemb er 10, 2015, via electronic filing service or email to the
following counsel:


     John G. Escamilla
     ESCAMILLA LAW FIRM
     1416 Dove Avenue
     McAllen, Texas 78504
     Email: john@escamillalawfirm.com
     Counsel for Respondent Gerardo Gonzalez

     Arturo Martinez
     LAW OFFICES OF ARTURO MARTINEZ
     414 S. Cage Boulevard
     Pharr, Texas 78577-5443
     Email: art@amtzlaw.com
     Counsel for Respondent Gerardo Gonzalez

     Brandy Wingate Voss
     SMITH LAW GROUP, P.C.
     820 E. Hackberry Avenue
     McAllen, Texas 78501
     E-mail: brandy@appealsplus.com
     Counsel for Respondent Gerardo Gonzalez


                                         /s/ Wade Crosnoe
                                         Wade Crosnoe




                                    21
APPENDIX
APPENDIX
  Tab 1
                      •                                       •
                               CAUSE NO. C-1442-11-I

GERARDO GONZALEZ                          §           IN THE DISTRICT COURT
    Plaintiff                             §
                                          §
vs.                                       §           398111 JUDICIAL DISTRICT
                                          §
DANIEL E. ARNOLD,                         §
     Defendant                            §           HIDALGO COUNTY, TEXAS



                                 FINAL JUDGMENT
       BE IT REMEMBERED that on April 15, 2013, came on to be heard the above-

entitled and numbered cause, and Plaintiff Gerardo Gonzalez appeared in person and

by and through his attorneys of record and announced ready for trial, and Defendant

Daniel E. Arnold appeared through his attorneys of record and announced ready for

trial, and after general voir dire, and a jury having been previously demanded, a jury of

twelve good and lawful men and women, who being duly empanelled and sworn, and

after hearing the opening statements, the evidence, the Charge of the Court and the

arguments of counsel, returned its verdict to the Court on the 25th day of April, 2013,

ten of the jurors agreeing to all parts of the verdict, and no objection being made as to

the receipt of the verdict, the verdict was received by the Court and filed among the

papers of this cause and the jury was discharged.

       The Charge of the Court, including the questions and the verdict of the jury, are

incorporated herein for all purposes by reference. It appearing to the Court, based on

the pleadings, stipulations, admissions, evidence and verdict of the jury that the

following judgment is proper and should be entered:


                                                              ,-:_,
                                                                       168
Final judgment                                                                  Page 1 of 5
      1.
                        •                                         •
                 THE COURT FINDS, based on the answers to Question No. 1, that the

jury found Daniel E. Arnold, AW Produce Co. and Gerardo Gonzalez were negligent,

and that such negligence was the cause of Plaintiff's injuries.

      2.         THE COURT FINDS, based on the answers to Question No. 2, that the

jury assessed comparative responsibility for the occurrence in question as follows: sixty-

five percent (65%) to Daniel E. Arnold; twenty percent (20%) to AW Produce Co.; fifteen

percent (15%) to Gerardo Gonzalez; zero percent (0%) to L&M Companies, and zero

percent (0%) to Stephen Miller d/b/a MECO Ventures.

       3.        THE COURT FINDS, based on the answers to Question No. 3, that the

jury found damages of Gerardo Gonzalez, arising from the occurrence in question, are

as follows: $600,000.00 for past physical pain; $200,000.00 for physical pain that, in

reasonable probability, will be sustained in the future; $600,000.00 for mental anguish

sustained in the past; $150,000.00 for mental anguish that, in reasonable probability, will

be sustained in the future; $50,000 for lost wages in the past, $465,000.00 for loss of

earning capacity that, in reasonable probability, will be sustained in the future;

$200,000.00 for physical impairment in the past, $100,000.00 for physical impairment

that, in reasonable probability, will be sustained in the future; and $250,000.000 for

disfigurement in the past.

       4.        THE COURT FINDS that the total damage award to Gerardo Gonzalez

was Two Million Six Hundred Fifteen Thousand and no/100 ($2,615,000.00), and that

Daniel E. Arnold, being 65% responsible for the occurrence, is jointly and severally

liable for the entire damages awarded to Gerardo Gonzalez by the jury in its answers to

Question No. 3.

       5.        THE COURT FINDS that, pursuant to Tex. Civ. Prac. & Rem. Code Ann.§

33.012(b ), this award should be reduced by fifteen percent (15% ), i.e. by a total of Three

Final judgment                                                                    Page 2 of 5
                                                                   169
                         •                                      •
Hundred Ninety Two Thousand, Two Hundred Fifty and no/100 ($392,250.00), based

on the jury's answer to Question no. 2, and

      6.         THE COURT FINDS that after said reductions, Gerardo Gonzalez's past

damages recoverable against Daniel E. Arnold are One Million Four Hundred Forty

Five Thousand and 00/100 Dollars ($1,445,000.00), that Gerardo Gonzalez's future

damages recoverable against Daniel E. Arnold are Seven Hundred Seventy Seven

Thousand Seven Hundred Fifty and 00/100 Dollars ($777,750.00), which make the total

award of damages Two Million Two Hundred Twenty Two Thousand Seven Hundred

Fifty and no/100 ($2,222,750.00).

       7.        THE COURT FINDS that pursuant to the Texas Finance Code§§ 304.103 &

304.104, prejudgment interest to be paid by Defendant Daniel E. Arnold should be

calculated for the Plaintiff's past actual damages at five percent (5% ), simple interest,

from the date Plaintiff first filed suit against Defendant (May 27, 2011) until the day

before the judgment is entered by this Court (May 21, 2013), or seven hundred twenty

five (725) days.

       8.        THE COURT FINDS that prejudgment interest for these past damages is

One Hundred Sixty Eight Thousand, Eight Hundred Thirty Five and 61/100 Dollars

($168,835.61), with prejudgment interest accruing at $232.87 per day.

       9.        THE COURT FURTHER FINDS that Defendant Arnold receive a credit

pursuant to Tex. Civ. Prac. & Rem. Code Ann.§ 33.012(b).

       10.       THE COURT FINDS that Plaintiff Gerardo Gonzalez is the prevailing

party and that, as such, he is entitled to have 100% of his recoverable costs of court to be

paid by Daniel E. Arnold.




Final judgment                                                                    Page 3 of 5

                                                                           170
      11.
                         •                                     •
                 THE COURT FINDS that Plaintiff Gerardo Gonzalez has demonstrated

recoverable court costs in the amount of Nine Thousand Five Hundred Seventy Six and

32/100 ($9,576.32).

      12.        THE COURT FINDS that Geraldo Gonzalez is entitled to total damages

award against Daniel E. Arnold in the amount of One Million Nine Hundred Sixty Six

Thousand Five Hundred Eighty Five and 61/100 Dollars ($1,966,585.61), plus costs in

the amount of Nine Thousand Five Hundred Seventy Six and 32/100 ($9,576.32), for a

total judgment of One Million Nine Hundred Seventy Six Thousand One Hundred One

and 93/100 Dollars ($1,976,161.93).

       It is therefore ORDERED, ADJUDGED, and DECREED:

       13.       That Plaintiff Geraldo Gonzalez be, and is, hereby awarded a judgment of

and against Daniel E. Arnold in the amount of One Million Nine Hundred Seventy Six

Thousand One Hundred One and 93/100 Dollars ($1,976,161.93).

       14.       That Geraldo Gonzalez's damages, factoring in pre-judgment interest,

shall total One Million Nine Hundred Sixty Six Thousand Five Hundred Eighty Five

and 61 I 100 Dollars ($1,966,585.61.00).

       15.       That 100% of Plaintiff Gerardo Gonzalez's recoverable costs are adjudged

against Daniel E. Arnold.

       16.       That Plaintiff Gerardo Gonzalez's recoverable costs total Nine Thousand

Five Hundred Seventy Six and 32/100 ($9,576.32).

       17.       That the above and foregoing judgment shall bear interest at the rate of

five percent (5%) per annum, compounded annually, from the date of this judgment

until paid, pursuant to Tex. Finance Code§§ 304.003 & 304.006.




Final judgment                                                                  Page 4 of 5
                                                                     1 'i' 1
                        •                                      •
       18.     That Plaintiff Gerardo Gonzalez has execution and ALL other writs and
                                                                               court as
processes for the enforcement and collection of this judgment and for costs of

may be necessary or proper to collect the same.

       19.     This judgm ent finally disposes of all parties to this lawsuit and of all

claims asserted by any party in all pleadings, and is a final, appealable judgment.

       SIGNED and ENTERED this 22nd day of May 2013.




                                          a~~~
                                          THE HONORABLE AIDA SALINAS FLORES




                                                                                      Page 5 of 5
  Final judgme nt
                                                                        172
APPENDIX
  Tab 2
                       •       CAUSE NO. C-1442-11-I

GERALDO GONZALEZ,                           §
Plaintiff                                   §
                                            §
VS.                                         §              HIDALGO COUNTY, TEXAS
                                            §
 DANIEL E. ARNOLD,                          §
-Defendant                                  §              398TH JUDICIAL DISTRICT

                              CHARGE OF THE COURT

LADIES AND GENTLEMEN OF THE JURY:

       This case is submitted to you by asking questions about the facts, which you
must decide from the evidence you have heard in this trial. You are the sole judges of
the credibility of the witnesses and the weight to be given their testimony, but in
matters of law, you must be governed by the instructions in this charge. In discharging
your responsibility on this jury, you will observe all the instructions which have
previously been given you. I shall now give you additional instructions which you
should carefully and strictly follow during your deliberations.

             1.      Do not let bias, prejudice or sympathy play any part m your
      deliberations.

             2.     In arriving at your answers, consider only the evidence introduced
      here under oath and such exhibits, if any, as have been introduced for your
      consideration under the rulings of the court, that is, what you have seen and
      heard in this courtroom, together with the law as given you by the court. In your
      deliberations, you will not consider or discuss anything that is not represented
      by the evidence in this case.

             3.     Since every answer that is required by the charge is important, no
      juror should state or consider that any required answer is not important.

             4.    You must not decide who you think should win, and then try to
      answer the questions 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 verdic~ .;\~, , , ...,_    :·"'~
                                                                                              r: '
      quotient verdict means that the jurors agree to abide by the resulf'to ;l:)e" r~cli~¥ ~ \'!       J.
      by adding together each juror's figures and dividing by the num~ bf. jUrors to
                         •                                      •
        get an average. Do not do any 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.     Unless otherwise instructed, you may answer a question upon the
        vote of ten or more jurors. If you answer more than one question upon the vote
        of ten or more jurors, the same group of at least ten of you must agree upon the
        answers to each of those questions.

        These instructions are given you because your conduct is subject to review the
 same as that of the witnesses, parties, attorneys and the judge. If it should be 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 of our time will have been wasted.

       "Negligence" means failure to use ordinary care, that is, failing to do that which
 a person of ordinary prudence would have done under the same or similar
 circumstances or doing that which a person of ordinary prudence would not have done
 under the same or similar circumstances.

        "Ordinary care" means that degree of care that would be used by a person of
· ordinary prudence under the same or similar circumstances.

      With respect to the condition of the premises, Daniel E. Arnold and L&M
 Companies were negligent if -

       a.     the condition posed an unreasonable risk of harm, and
       b.     Daniel E. Arnold and L&M Companies knew or reasonably should have
              known of the danger, and
       c.     Daniel E. Arnold and L&M Companies failed to exercise
              ordinary care to protect Gerardo Gonzalez from the danger, by both
              failing to adequately warn Gerardo Gonzalez of the condition and failing
              to make the condition reasonably safe.

      "Ordinary care" when used with respect to Daniel E. Arnold and L&M
Companies as owners or occupiers of the premises, means that degree of care that
would be used by an owner or occupier of ordinary prudence under the same or similar
circumstances.

       "Proximate cause" means a cause that was a substantial factor in bringing about
an event, and without which cause such event would not have occurred. In order to be
a proximate cause, the act or omission complained of must be such that a person using
ordinary care would have foreseen that the event, or some similar event, might
reasonably result therefrom. There may be more than one proximate cause of an event.


                                     Page 2 of 11                      125
                        •                                    •
       The presiding juror or any other who observes a violation of the court's
instructions shall immediately warn the one who is violating the same and caution the
juror not to do so again.

       When words are used in this charge in a sense that varies from the meaning
commonly understood, you are given a proper legal definition, which you are bound to
accept in place of any other meaning.

       Answer "Yes" or "No" to all questions unless otherwise instructed. A "Yes"
answer must be based on a preponderance of the evidence unless you are otherwise
instructed. If you do not find that a preponderance of the evidence supports a "Yes"
answer, then answer "No." The term "preponderance of the evidence" means the
greater weight and degree of credible evidence admitted in this case. Vvhenever a
question requires an answer other than "Yes" or "No," your answer must be based on a
preponderance of the evidence unless you are otherwise instructed.

        After you retire to the jury room, you will select your own presiding juror. The
first thing the presiding 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 of the presiding juror-

             1.     to preside during your deliberations,

             2.     to see that your deliberations are conducted in an orderly manner
                    and in accordance with the instructions in this charge,

             3.     to write out and hand to the bailiff any communications concerning
                    the case that you desire to have delivered to the judge,

             4.     to vote on the questions,

             :J.    to vvrite your answers to the questions in the spaces provided, and

             6.     to certify to your verdict in the space provided for the presiding
                    juror's signature or to obtain the signatures of all the jurors who
                    agree with the verdict if your verdict is less than unanimous.

       You should not discuss the case with anyone, not even with other members of
the jury, unless all of you are present and assembled in the jury room. Should anyone
attempt to talk to you about the case before the verdict is returned, whether at the
courthouse, at your home, or elsewhere, please inform the judge of this fact.



                                    Page 3 of11
                                                                       126
                       •                                         •
       When you have answered all the questions you are required to answer under the
instructions of the judge and your presiding juror has placed your answers in the spaces
provided and signed the verdict as presiding juror or obtained the signatures, you will
inform the bailiff at the door of the jury room that you have reached a verdict, and then
you will return into court with your verdict.

             Signed on this the 25th day of April, 2013 at   f 0 ~ .J...O,   ~




                                    Page 4 of 11                             127
                     •            QUESTIONl
                                                       •
      Did the negligence, if any, of those named below proximately cause the
occurrence in question?

     Answer "Yes" or "No" for each of the following:

           a.     Daniel E. Arnold                         yes
           b.     L&M Companies, Inc.                      A.lo
           c.     Stephen Miller d/b/a MECO                No
           d.     Gerardo Gonzalez                      \flS
           e.    AW Produce Co., Inc.                   yts




                                                              128

                                 Page 5 of 11
                       •                                    •
       If you have answered "Yes" to Question 1 for more than one of those named
below, then answer the following question. Otherwise, do not answer the following
question.

       The percentages you find must total 100 percent. The percentages must be
expressed in whole numbers. The negligence attributable to any one named below is
not necessarily measured by the number of acts or omissions found. The percentage
attributable to any one need not be the same percentage attributed to that one in
answering another question.

                                    QUESTION2

        What percentage of the negligence that caused the occurrence do you find to be
attributable to each of those listed below and found by you, in your answer to Question
1, to have been negligent?

             a.     Daniel E. Arnold                                LaS
             b.     L&M Companies, Inc.                             0
             c.     Stephen Miller d/b/a :MECO                      0
             d.     Gerardo Gonzalez                                16
             e.     AW Produce Co., Inc.
                                                                   2J)
                    Total                                           100          %




                                                                    129
                                  Page 6 ofll
                          •                                        •
      Answer Questions 3 if you answered "Yes" to any part of Question 1 and
answered:

                    (1)      "No" for Gerardo Gonzalez to Question 1, or

                    (2)      50 percent or less for Gerardo Gonzalez to Question 2.

      Otherwise, do not answer any more questions.

                                      QUESTION 3

       What sum of money, if paid now in cash, would fairly and reasonably
compensate Gerardo Gonzalez for his injuries, if any, that resulted from the occurrence
in question?

       Consider the elements of damages listed below and none other. Consider each
element separately. Do not award any sum of money on any element if you have
otherwise, under some other element, awarded a sum of money for the same loss. That
is, do not compensate twice for the same loss, if any. Do not include interest on any
amount of damages you find.

     Answer separately, in dollars and cents, for damages, if any. Do not reduce the
amounts, if any, in your answers because of the negligence, if any, of Gerardo Gonzalez.

      a.     Physical pain sustained in the:~

             Answer:      ~ 520,000. ~                d; (.cGJ, oc:CJ.""'

      b.     Physical pain that, in reasonable probability, Gerardo         Gonzalez will
             sustain in the future.

             Answer:      S ?Joof!)-00.       cJi)



      c.     Mental anguish sustained in the past.

             Answer:·     ~-LQ:Q&eo. <00?
      d.     Mental anguish that, in reasonable probability, Gerardo Gonzalez will
             sustain in the future.

             Answer:      -$ !.:SO,fl-00.""
      e.     Lost wages sustained in the past.
                                                             ..·       130
                                     Page 7 of11
     Answer:
                •
               -.$~
                  uO I O(X).
                                    <P
                                                    •
f.   Loss of earning capacity that, in reasonable probability, Gerardo Gonzalez
     will sustain in the future.

     Answer:    .$ Lj   L?5 000. o<=>
g.   Physical impairment sustained in the past.

     Answer:
               . :$ I)J...>..AJ,
                          ""'""
                                 00 D .
                                       ot>
                            •

h.   Physical impairment that, in reasonable probability, Gerardo Gonzalez
     will sustain in the future.

     Answer:
               tf. I CO, 0      0 0,
                                         oo


1.   Disfigurement incurred in the past.
                                      •<>
     Answer: $     25o     1
                               ooO,

l·   Disfigurement that, in reasonable probability, Gerardo Gonzalez will
     incur in the future.

     Answer: -~"----=0'-------




                                                             131

                                Page 8 of 11
                       •                                     •
       Answer the following question regarding Daniel E. Arnold only if you
unanimously answered "Yes" to Qustion 1. Otherwise, do not answer the following
question regarding Daniel E. Arnold.

      To answer "Yes" to the following question, your answer must be unanimous.
You may answer "No" to the following question only upon a vote of ten or more jurors.
Otherwise you must not answer the following question.


                                    QUESTION 4

     Do you find by clear and convincing evidence that the harm to Gerardo
Gonzalez resulted from gross negligence attributable to Daniel E. Arnold?

             "Clear and convincing evidence" means the measure or degree of proof
      that produces a firm belief or conviction of the truth of the allegations sought to
      be established.

             "Gross negligence" means an act or omission by Daniel E. Arnold,

             (a)   which when viewed objectively from the standpoint of Daniel E.
                   Arnold at the time of its occurrence involves an extreme degree of
                   risk, considering the probability and magnitude of the potential
                   harm to others; and

             (b)   of which Daniel E. Arnold has actual, subjective awareness of the
                   risk involved, but nevertheless proceeds with conscious
                   indifference to the rights, safety, or welfare of others.

      Answer "Yes" or "No."

      Answer: _ _ _ _ _ __




                                                                        132

                                   Page 9 of 11
                       •                                     •
      Answer the following question only if you unanimously answered "Yes" to
Question 4. Otherwise, do not answer the following question.

                                     QUESTION 5

      You are instructed that you must unanimously agree on the amount of any
award of exemplary damages.

      What sum of money, if any, should be assessed against Daniel E. Arnold and
awarded to Gerardo Gonzalez as exemplary damages for the conduct found in response
to Question 4?

            "Exemplary damages" means any damages awarded as a penalty or by
      way of punishment but not for compensatory purposes. Exemplary damages
      includes punitive damages.

      Factors to consider in awarding exemplary damages, if any, are-

             a.    The nature of the wrong.

            b.     The character of the conduct involved.

            c.     The degree of culpability of the wrongdoer.

            d.     The situation and sensibilities of the parties concerned.

            e.     The extent to which such conduct offends a public sense of justice
                   and propriety.

            f.     The net worth of Daniel E. Arnold.

      Answer in dollars and cents, if any.


      Answer: _ _ _ _ _ __




                                                                   133

                                   Page 10 of 11
                         •             CERTIFICATE
                                                                  •
       We, the jury, have answered the above and foregoing questions as herein indicated, and
herewith return same into court as our verdict.

       I certify that the jury was unanimous in answering the following questions:

       Answer "All" or list questions: ~'L""'--t-J·~?<-------


                                           ;~~JUROR
                                           Printed Name of Presiding Juror

(If the answers to some questions were not unanimous, the jurors who agreed to those answers
must certify as follows:)

       We agree to the answers to the following questions:

       List questions: ~j"""''-----~~-

                                                    Jurors' Printed Names

                                                    Pcd-·n' c.i ~ $wy-~
                                                       l?tE YtJAl,ib o Ro:n&i&.uez
                                                        hv.""{      tn/\        Zc   /e 2--   :j r.



                                                                            I
                                                     Cf?ase Heccuo.-




                                                                                 134
                                     Page 11 ofll
APPENDIX
  Tab 3
Arnold v. Gonzalez, Not Reported in S.W.3d (2015)




                                                               Gonzalez performed maintenance on forklifts for A–W
                2015 WL 5109757                                Produce Company (“AW”). Arnold is the president of
  Only the Westlaw citation is currently available.            AW. Gonzalez injured his arm while working as an
                                                               employee of AW. On the morning of the accident, Javier
  SEE TX R RAP RULE 47.2 FOR DESIGNATION                       Luna, an AW supervisor, asked Gonzalez to help another
         AND SIGNING OF OPINIONS.                              employee, Jesus Montelongo, set up a section of a
                                                               conveyor belt, which was located on property owned by
               Court of Appeals of Texas,                      Arnold. There was no guard on the belt because the set-up
               Corpus Christi-Edinburg.                        of the belt had not yet been completed. Gonzalez reached
                                                               for a wrench and his hand got caught in the conveyor belt.
             Daniel E. Arnold, Appellant,                      Gonzalez broke his forearm in several places and
                          v.                                   sustained severe injuries requiring skin grafts. It is
             Gerardo Gonzalez, Appellee.                       undisputed that Gonzalez’s injury was covered by
                                                               workers’ compensation.
 NUMBER 13–13–00440–CV | Delivered and filed
             August 28, 2015                                   Gonzalez filed negligence and premises liability claims
                                                               against Arnold, among other defendants. Evidence
                                                               adduced at trial indicated that Arnold owned the
On appeal from the 398th District Court of Hidalgo
                                                               warehouse where Gonzalez was injured and personally
County, Texas.
                                                               designed and assembled heavy machinery at the property
Attorneys and Law Firms                                        including several conveyors. There is disputed evidence
                                                               regarding whether AW leased the property from Arnold,
Wade C. Crosnoe, Robert E. Valdez, for Appellant               but it is undisputed that Arnold owns the property where
                                                               Gonzalez was injured. The evidence showed that much of
John G. Escamilla, Arturo Martinez, for Appellee               the heavy machinery had never been moved since it had
Before Chief Justice Valdez and Justices Garza and             been installed. Gonzalez claimed that the emergency
Perkes                                                         cut-off switch was located on the opposite wall from the
                                                               conveyor belt and that the distance from the belt to the
                                                               switch, in part, caused his injuries.

                                                               Arnold moved for summary judgment, arguing that under
                                                               the Texas Labor Code section 408.001(a), the Texas
             MEMORANDUM OPINION                                Workers’ Compensation Act (“TWCA”), worker’s
                                                               compensation was Gonzalez’s exclusive remedy for a
                                                               work-related injury. See TEX. LAB.CODE ANN. §
Memorandum Opinion by Chief Justice Valdez
                                                               408.001(a) (West, Westlaw through Ch. 46 2015 R.S.).
*1 Appellant, Daniel E. Arnold, appeals the judgment in        Gonzalez responded that he was not suing Arnold in his
favor of appellee, Gerardo Gonzalez. By four issues,           capacity as his employer but only in his capacity as the
Arnold contends: (1) Gonzalez’s suit against him is barred     premises owner.
by the Workers’ Compensation Act; (2) the trial court
abused its discretion when it refused to submit his            At the jury trial, the trial court granted Gonzalez’s motion
requested jury question regarding the right to control; (3)    in limine regarding any mention of workers’
the evidence is legally and factually insufficient to          compensation. The parties stipulated that (1) Gonzalez
support the jury’s award of damages for Gonzalez’s loss        was acting in the course and scope of his employment, (2)
of future earning capacity; and (4) the trial court erred in   AW was a subscriber under the TWCA, and (3) Gonzalez
imposing joint and several liability on Arnold for             received worker’s compensation benefits for his injuries.
damages caused by Gonzalez’s employer. We affirm.              The trial court denied Arnold’s request to include a jury
                                                               question on whether Arnold exercised or retained control
                                                               over the manner in which the work was performed. The
                                                               jury found that Arnold was negligent and that he was
                                                               sixty-five percent responsible for Gonzalez’s injuries. The
                   I. BACKGROUND                               jury also found AW twenty percent responsible as a
                                                               designated responsible third party. The trial court made

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     1
Arnold v. Gonzalez, Not Reported in S.W.3d (2015)



Arnold jointly and severally liable for all of the damages   Turner, 871 S.W.2d 220, 223 (Tex.App.—El Paso 1993,
attributable to AW. The jury awarded $2,614,000 in past      writ. denied) (“In addressing the meaning of the former
and future damages, including $465,000 in lost future        ‘exclusive remedy’ statute, the Supreme Court has found
earning capacity. Arnold filed a motion for judgment         that an agent, servant, or employee within the meaning of
notwithstanding the verdict and motion for new trial. Both   the statute is ordinarily one for whose conduct the
were denied. This appeal ensued.                             employer would, aside from the Workmen’s
                                                             Compensation Act, be legally responsible under the
                                                             doctrine of respondeat superior.”) (citing McKelvy v.
                                                             Barber, 381 S.W.2d 59, 62 (Tex.1964)). “In order to
                                                             impose liability upon an employer for the negligence of
      II. EXCLUSIVITY OF REMEDY UNDER                        his employee under the doctrine of respondeat superior,
         WORKERS’ COMPENSATION ACT                           the acts of the employee must fall within the scope of the
                                                             general authority of the employee and must be in
*2 By his first issue, Arnold contends that as a matter of   furtherance of the employer’s business and for the
law he was an employee of AW; thus, because Gonzalez         accomplishment of the object for which the employee was
received workers’ compensation benefits, Gonzalez’s suit     hired.” Long, 871 S.W.2d at 224.
against him is prohibited by the exclusivity provision of
408.001(a) of the TWCA, which provides that recovery of
                                                                         Under the theory of respondeat
workers’ compensation benefits is the exclusive remedy
                                                                         superior ... an employer may be
against the employer or an agent or employee of the
                                                                         vicariously liable for the negligent
employer for the death of, or a work-related injury
                                                                         acts of its employee if the
sustained by, the employee. See TEX. LAB.CODE ANN.
                                                                         employee’s actions are within the
§ 408.001(a). Gonzalez responds that whether Arnold was
                                                                         course     and     scope    of   his
in fact an employee of AW was disputed at trial, Arnold
                                                                         employment.... The employee’s
failed to request a jury question on the issue, and
                                                                         acts must be of the same general
therefore, Arnold has waived his affirmative defense that
                                                                         nature as the conduct authorized or
workers’ compensation exclusivity applies.
                                                                         incidental to the conduct authorized
                                                                         to be within the scope of
“Recovery of workers’ compensation benefits is the sole
                                                                         employment.
remedy of an injured employee covered by workers’
compensation insurance against the employer, agent of
the employer, or employee of the employer, absent an         Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754,
intentional act to harm or gross negligence by the           757 (Tex.2007). For example,
employer.” Burkett v. Welborn, 42 S.W.3d 282, 287
                                                               [i]n    Ward     v.    Wright,    490     S.W.2d      223
(Tex.App.— Texarkana 2001, no pet.) (citing Tex.
                                                               (Tex.Civ.App.—Fort Worth 1973, no writ), two
Lab.Code Ann. § 408.001(a); Darensburg v. Tobey, 887
                                                               company employees, while on their lunch hour and not
S.W.2d 84, 86–87 (Tex.App.—Dallas 1994, writ denied)).
                                                               on employer business, were involved in a collision
A co-employee accused of negligent conduct is exempt
                                                               between their respective automobiles as they both were
from tort actions by the exclusive remedy provision, and
                                                               in the process of leaving the company parking lot. The
the immunity of the employer extends to co-employees.
                                                               Fort Worth Court of Appeals held that because it was
Burkett, 42 S.W.3d at 287; see also Lockett v. HB Zachry
                                                               “obvious that the parties’ common employer would not,
Co., 285 S.W.3d 63, 75 (Tex.App.—Houston [1st Dist.]
                                                               under the Respondeat superior doctrine, have been
2009, no pet.) (concluding that the employer was immune
                                                               responsible for the negligence of either of the parties to
from premises liability cause of action because employee
                                                               the automobile collision[,]” the defendant driver
had received workers’ compensation). However, Texas
                                                               [co-employee] was not immune from liability under the
courts have determined that section 408.001’s reference to
                                                               exclusive remedy provision [of the TWCA] (Article
“employee of the employer” includes only an employee
                                                               8306, Section 3) and was not therefore entitled to a
for whose conduct the employer is legally responsible
                                                               summary judgment.
under the doctrine of respondeat superior. Burkett, 42
S.W.3d at 288–89; Darensburg, 887 S.W.2d. at 86–87           *3 Long, 871 S.W.2d at 223–24.
(explaining that in Texas, “[a]n ‘agent, servant, or
employee’ within the meaning of Section 3(a) of the          Here, Gonzalez sued Arnold under a premises liability
workers’ compensation statute is one for whose conduct       theory claiming that “[b]ecause of the negligent manner in
the employer would be legally responsible under the          which the warehouse [that Arnold owned and/or
doctrine of respondeat superior”); see also Long v.          occupied] had been set up, designed, and operated, there
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    2
Arnold v. Gonzalez, Not Reported in S.W.3d (2015)



was no readily available way for him to avoid or               ordinary care to protect” Gonzalez “from the danger, by
minimize the serious injuries that ensued after he did         both failing to adequately warn” Gonzalez “of the
become entangled [in the conveyor belt].”1 Gonzalez            condition and failing to make the condition reasonably
further claimed the following:                                 safe”; and (2) “ ‘Ordinary care’ when used with respect to
                                                               [Arnold] ... as owners or occupiers of the premises, means
            After acquiring the subject                        that degree of care that would be used by an owner or
            property, [Arnold] had negligently                 occupier of ordinary prudence under the same or similar
            set up a network of machines,                      circumstances.” Arnold did not request a jury question
            motors, electrical circuitry, and                  regarding whether he had set up the layout of the
            fixtures which he knew would be                    warehouse in furtherance of AW’s business while acting
            utilized by various individuals,                   in the course and scope of his employment as AW’s agent
            including employees of various                     or employee.
            businesses. Although he had no
            expertise, Arnold designed the                     *4 Arnold argues that even if the evidence supports a
            premises in a way that failed to                   finding that he owned the premises, so long as his claim
            properly account for the safety of                 that he was AW’s employee was undisputed at trial, we
            his invitees and licensees, and                    must reverse the jury’s verdict because Gonzalez received
            which created [foreseeable] risks to               workers’ compensation benefits making Arnold immune
            individuals he knew would likely                   from suit. We disagree.
            be on the property.
                                                               “The failure to request a jury instruction on an affirmative
At trial, the issue of whether Arnold designed the             defense results in waiver of that ground by the party
warehouse’s layout as part of his duties as AW’s               relying on it unless the issue was conclusively
employee was contested by the parties.2 Arnold insisted        established.” XCO Prod. Co. v. Jamison, 194 S.W.3d 622,
that when he set up the warehouse and installed the            632 (Tex.App.—Houston [14th Dist.] 2006, pet. denied).
conveyers, he was acting in furtherance of AW’s business       “The [workers’ compensation act’s] exclusive remedy
and that his acts fell within the scope of his work duties     provision is an affirmative defense that the defendant
for AW. However, Gonzalez disputed Arnold’s assertions         must plead and prove.” Warnke v. Nabors Drilling USA,
and presented evidence to the jury that impeached              L.P., 358 S.W.3d 338, 343 (Tex.App.—Houston [1st
Arnold’s credibility, such as evidence that Arnold had         Dist.] 2011, no pet.) (op. on reh’g) (citing Exxon Corp. v.
incorrectly stated in a lease agreement with L & M             Perez, 842 S.W.2d 629, 630–31 (Tex.1992); AMS Const
Companies and in a petition filed in a separate lawsuit by     Co. v. K.H.K. Scaffolding Houston, Inc., 357 S.W.3d 30,
Arnold and AW that AW owned the premises. AW’s                 43 (Tex.App.—Houston [1st Dist.] 2011, no pet.));
status as a lessee of the warehouse was also contested by      Abraxas Petroleum Corp. v. Hornburg, 20 S.W.3d 741,
the parties. Arnold consistently claimed that he had leased    763 (Tex.App.—El Paso 2000, no pet.) (explaining that
the warehouse where Gonzalez had been injured to AW            the failure to request and tender a proper jury charge on
and that AW had control over the premises and was              the issue, waives any complaint relating to an affirmative
responsible for the premises’ condition. However, on           defense on appeal).
direct examination by Gonzalez, Arnold agreed that there
was no documentation or lease showing that AW actually         Here, Arnold’s credibility was at issue, and the evidence
leased the premises from Arnold. Arnold claimed that he        was contested regarding whether Arnold acted in
had an oral lease with AW’s representative, who                furtherance of AW’s interests when he committed the
happened to be Arnold, regarding AW’s duty to maintain         alleged negligent acts.3 Arnold did not request a question
the premises. And, Arnold stated that he, only as AW’s         in the jury charge concerning whether he was acting in
employee and agent, was responsible for repairs on the         furtherance of AW’s interests when he set up the
premises. Gonzalez pointed out and Arnold agreed that          warehouse’s layout and installed the conveyor. Given that
Arnold also rented the premises to L & M Companies for         the evidence was contested that Arnold was acting in
a period of time and that the two had a written lease.         furtherance of AW’s interest when he allegedly
                                                               committed the negligent acts or omissions, we are unable
The trial court instructed the jury as follows: (1) “With      to conclude that the evidence conclusively established
respect to the condition of the premises, [Arnold was]         that Arnold was AW’s agent or employee within the
negligent if ... the condition posed an unreasonable risk of   meaning of the TWCA. See Burkett, 42 S.W.3d at 288–89
harm and” Arnold “knew or reasonably should have               (defining the term “employee of the employer” as an
known the danger, and” Arnold “failed to exercise              employee for whose conduct the employer is legally

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     3
Arnold v. Gonzalez, Not Reported in S.W.3d (2015)



responsible under the doctrine of respondeat superior);         or omissions as a property owner. Id. On that basis, the
Darensburg, 887 S.W.2d. at 86–87. Moreover, in this             court held that the exclusive remedy provision did not bar
case, whether Arnold was acting in furtherance of AW’s          Burkett’s claim against Welborn and reversed the trial
interests is a question of fact as it was contested at trial.   court’s summary judgment granted in favor of Welborn.
See Arbelaez v. Just Brakes Corp., 149 S.W.3d 717, 720          Id. at 290.
(Tex.App.—Austin 2004, no pet.) (explaining that
“course and scope of employment is generally a fact issue       Like the premises owner in Burkett, Arnold’s status as a
like negligence or proximate cause”) (citing GTE Sw.,           co-employee does not bar Gonzalez’s negligence claims,
Inc. v. Bruce, 998 S.W.2d 605, 618 (Tex.1999); Tex.             because AW would not be legally responsible for
Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 515            Arnold’s acts or omission as a landowner under the
(Tex.1995)); see also Arrellano v. State Farm Fire & Cas.       doctrine of respondeat superior. See Id. Accordingly, we
Co., 191 S.W.3d 852, 855 (Tex.App.— Houston [14th               overrule Arnold’s first issue.4
Dist.] 2006, no pet.) (“Whether an individual acts within
the course and scope of employment is generally a
question of fact when more than one inference may be
drawn from the evidence.”).
                                                                                  III. JURY QUESTION
*5 Therefore, by not requesting a jury question regarding
whether he was acting in furtherance of AW’s interests,         *6 By his second issue, Arnold contends that the trial
Arnold has not preserved his affirmative defense that the       court abused its discretion when it refused to submit his
workers’ compensation exclusive remedy provision                requested jury question regarding the right to control.
applies in this case. See Abraxas Petroleum Corp., 20           Pursuant to Pattern Jury Charge 66.3, Arnold requested
S.W.3d at 763; see also Warnke, 358 S.W.3d at 343 (“The         the following question:
[TWCA’s] exclusive remedy provision is an affirmative
                                                                  Did Daniel E. Arnold, Individually, exercise or retain
defense that the defendant must plead and prove.”) (citing
                                                                  some control over the manner in which the injury
Exxon Corp., 842 S.W.2d at 630–31; AMS Const. Co.,
                                                                  causing activity was performed, other than the right to
357 S.W.3d at 43).
                                                                  order the work to start or stop or to inspect progress or
                                                                  receive reports?
Our conclusion is consistent with our sister court’s
opinion in Burkett which involved similar facts. 42               Answer “Yes” or “No.”
S.W.3d at 282. In that case, Kenneth Burkett was injured
while performing work on a trailer home owned by his            Gonzalez responds that the trial court correctly denied
employer, but located on land owned individually by             Arnold’s requested question because it is not applicable in
Rosalie Welborn, the sole-shareholder of the corporation        this case.
employing Burkett. Id. at 285. Welborn was also
employed as the president of the corporation. Id. Burkett       A trial court’s decision whether to submit a particular jury
received workers’ compensation benefits as an employee          question is reviewed for an abuse of discretion. Park N.
of the corporation, and later brought a premises liability      Serv. Ctr., L.P. v. Applied Circuit Tech., Inc., 338 S.W.3d
claim against Welborn. Id. at 286. The trial court granted      719, 721 (Tex.App.—Dallas 2011, no pet.) (citing Tex.
summary judgment in favor of Welborn, ruling that               Dep’t of Human Servs. v. E.B., 802 S.W.2d 647, 649
Burkett’s recovery under workers’ compensation was a            (Tex.1990); Hen ry v. Masson, 333 S.W.3d 825, 848–49
bar to further recovery. Id. On appeal, Welborn argued          (Tex.App.—Houston [1st Dist.] 2010, no pet.)). An abuse
that the exclusive remedy available to Burkett against his      of discretion occurs if the trial court acts in an arbitrary or
co-employee is recovery of workers’ compensation                unreasonable manner or acts without reference to any
benefits. Id. at 288. In addressing this argument, the court    guiding rules and principles. Downer v. Aquamarine
noted that the exclusive remedy provision bars recovery         Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.1985). A
against a co-employee only where the employer is legally        trial court must submit a properly requested jury question
responsible for the conduct under the doctrine of               if the issue is raised by the pleadings and evidence and is
respondeat superior. Id. at 288–89. The court explained         necessary to enable the jury to render a verdict. TEX.R.
that although the corporation was responsible for the           CIV. P. 278; Union Pac. R.R. Co. v. Williams, 85 S.W.3d
trailer home on Welborn’s property, this did not “in itself     162, 166 (Tex.2002); Park N. Serv. Ctr., L.P., 338 S.W.3d
distinguish her from the duties of [a] property owner[,]”       at 721. “A trial court may refuse to submit a question only
owed to an invitee. Id. at 289. The court determined that       if there is no evidence in the record to warrant its
the employer would not be responsible for Welborn’s acts        submission.” Park N. Serv. Ctr., L.P., 338 S.W.3d at 721

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         4
Arnold v. Gonzalez, Not Reported in S.W.3d (2015)



(citing Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex.1992);      second issue.
Exxon Corp. v. Perez, 842 S.W.2d 629, 631 (Tex.1992)
(per curiam); Barnett v. Coppell N. Tex. Court, Ltd., 123
S.W.3d 804, 824 (Tex.App.—Dallas 2003, pet. denied)).

As Arnold points out in his reply brief, Pattern Jury            VI. LOSS OF FUTURE EARNING CAPACITY
Charge 66.3 applies to property owners. See id. However,
a property owner is only entitled to such an instruction if   By his third issue, Arnold contends that there is no legally
the injury was caused by “the negligent activity of an        or factually sufficient evidence to support the jury’s
independent contractor” or if the premises defect was         award of $465,000 in damages for lost future earning
created by an independent contractor’s work.5 Braudrick       capacity.
v. Wal-Mart Stores, Inc., 250 S.W.3d 471, 476
(Tex.App.—El Paso 2008, no pet.); see also Tex. R. CIV.
P. § 95.003). “An independent contractor has been
                                                              A. Standard of Review
defined as ‘any person who, in the pursuit of an
                                                              The test for legal sufficiency is “whether the evidence at
independent business, undertakes to do a specific piece of
                                                              trial would enable reasonable and fair-minded people to
work for other persons, using his own means and
                                                              reach the verdict under review.” City of Keller v. Wilson,
methods, without submitting himself to their control in
                                                              168 S.W.3d 802, 827 (Tex.2005). We review the evidence
respect to all its details.’ ” Schievink v. Wendylou Ranch,
                                                              in the light most favorable to the verdict, crediting any
Inc., 227 S.W.3d 862, 866 (Tex.App.— Eastland 2007,
                                                              favorable evidence if a reasonable fact-finder could and
pet. denied) (quoting Indus. Indem. Exch. v. Southard,
                                                              disregarding any contrary evidence unless a reasonable
160 S.W.2d 905, 907 (1942)). In making a determination
                                                              fact-finder could not. Id. at 821–22, 827.
regarding whether someone is an independent contractor,
we consider several factors, which include the following:
                                                              A no-evidence point will be sustained when (1) there is a
                                                              complete absence of evidence of a vital fact, (2) the court
            (1) the independent nature of his                 is barred by rules of law or evidence from giving weight
            business; (2) his obligation to                   to the only evidence offered to prove a vital fact, (3) the
            furnish necessary tools, supplies,                evidence offered to prove a vital fact is no more than a
            and material to perform the job; (3)              mere scintilla, or (4) the evidence conclusively establishes
            his right to control the progress of              the opposite of a vital fact. King Ranch, Inc. v. Chapman,
            the work, except as to final results;             118 S.W.3d 742, 751 (Tex.2003); see City of Keller, 168
            (4) the time for which he is                      S.W.3d at 810. Less than a scintilla of evidence exists
            employed; and (5) the method of                   when the evidence is “so weak as to do no more than
            payment, whether by time or by the                create a mere surmise or suspicion” of a fact, and the legal
            job.                                              effect is that there is no evidence. Kindred v. Con/Chem,
                                                              Inc., 650 S.W.2d 61, 63 (Tex.1983).
*7 Id.
                                                              When considering a factual sufficiency challenge to a
Arnold does not provide citation to the record regarding      jury’s verdict, courts of appeals must consider and weigh
where the evidence raised the issue of AW’s or                all of the evidence, not just that evidence which supports
Gonzalez’s status as an independent contractor.6 See          the verdict. Mar. Overseas Corp. v. Ellis, 971 S.W.2d
TEX.R.APP. P. 38.1(i). Therefore, we cannot conclude          402, 406–07 (Tex.1998). A court of appeals can set aside
that the trial court abused its discretion by determining     the verdict only if it is so contrary to the overwhelming
that Pattern Jury Charge 66.3 is inapplicable under these     weight of the evidence that the verdict is clearly wrong
circumstances. Arnold further argues, in his reply brief,     and unjust. Id. at 407.
that because there was evidence that he was the landlord
and AW was the tenant, the trial court should have
submitted his requested question to the jury. However, as
stated above, Pattern Jury Charge 66.3 is required when       B. Applicable Law
there is evidence that an independent contractor has          *8 “Loss of future earning capacity is the plaintiffs
caused the negligent activity or premises defect, and         diminished capacity to earn a living after the trial, which
Arnold has not provided any authority, and we find none,      is always uncertain.”7 Plainview Motels, Inc. v. Reynolds,
providing that in a landlord-tenant situation Pattern Jury    127 S.W.3d 21, 35 (Tex.App.—Tyler 2003, pet. denied)
Charge 66.3 is appropriate. Thus, we overrule Arnold’s        (corrected op.). Due to its uncertainty, the jury has

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     5
Arnold v. Gonzalez, Not Reported in S.W.3d (2015)



considerable discretion in determining the amount of the       he has not been authorized to go back to the type of work
plaintiff’s future earning capacity. Id. (citing Mclverv.      that he did prior to the accident. According to Gonzalez,
Gloria, 169 S.W.2d 710, 712 (1943); Tri–State Motor            he is no longer able to physically perform mechanical
Transit Co. v. Nicar, 765 S.W.2d 486, 492                      work like he did prior to the accident. Specifically,
(Tex.App.—Houston [14th Dist.] 1989, no writ)). “To            Gonzalez said, “No, I can’t [hold the tools with the type
support an award of damages for loss of future earning         of strength that I needed with my dominant arm the way I
capacity, the plaintiff must introduce evidence sufficient     did before the] incident. I tried, but I can’t hold the
to allow the jury to reasonably measure earning capacity       wrench or I can’t hold the hammer. I just can’t make a
in monetary terms.” Id. at 35–36 (citing Bonney v. San         fist. This is all the movement that I can make, so I—it
Antonio Transit Co., 325 S.W.2d 117, 121 (1959); City of       doesn’t help me at all to work as I used to.”
Houston v. Howard, 786 S.W.2d 391, 395–96
(Tex.App.— Houston [14th Dist.] 1990, writ denied)).           The trial court admitted two W–2 forms showing that in
The jury may base its award of loss of future earning          the month of January of 2010, Gonzalez made $943 at
capacity damages on several factors that may affect a          AW and $1116 as a janitor at another job site. Gonzalez
person’s capacity to earn a living, including stamina,         testified that he was injured in February of 2010;
efficiency, ability to work with pain, and the weakness        therefore he could no longer work and received no further
and degenerative changes which naturally result from an        pay checks that year. However, prior to the accident,
injury and from long suffered pain. Id. (citing                Gonzalez had planned on continuing working at both jobs
Metropolitan Life Ins. Co. v. Haney, 987 S.W.2d 236, 244       and stated that he would have received a raise at AW had
(Tex.App.—Houston [14th Dist.] 1999, pet. denied)). The        he continued working there. Gonzalez testified that prior
plaintiff must provide evidence of his or her capacity to      to 2010, he had been working as a janitor for a few years.8
work prior to the injury and that his or her capacity was      Regarding his position as a janitor, the trial court admitted
impaired as a result of the injury. Id. “In determining what   a checklist that Gonzalez signed when he started working
evidence is sufficient to support a claim of loss of earning   with a particular janitorial company in 2009. The
capacity, no general rule can be laid down, except that        checklist included a requirement that Gonzalez be able to
each case must be judged upon its peculiar facts, and the      clean 3,500 square feet per hour; however, Gonzalez
damages proved with that degree of certainty of which the      stated that he can no longer do so due to his injury.
case is susceptible.” Strauss v. Cont’l Airlines, Inc., 67
S.W.3d 428, 436 (Tex.App.—Houston [14th Dist.] 2002,           *9 The trial court also admitted pictures of Gonzalez’s
no pet.).                                                      arm, which depicted the scars of his injury, which
                                                               appeared to be severe based on the amount of scarring.9
                                                               Evidence was presented that when Gonzalez was injured,
                                                               his arm was “hanging” off his body “like a rag” and that
C. Discussion                                                  he had been hospitalized for thirty days. Gonzalez
Arnold acknowledges that Gonzalez presented evidence           explained that one of the pictures showed where he had
(1) that by working at two jobs the month before the           received a skin graft after he was injured and that another
accident, he earned a total of just over $2000, (2) of his     picture showed where skin had been removed from his leg
employment records from his janitorial employer, ABM,          to perform the skin graft. Gonzalez said that the doctors
from the ten-month period prior to the accident, and (3)       removed two skin grafts from the top of his leg and two
“he could not return to the type of physical labor he was      from the bottom. According to Gonzalez, the process of
performing before the accident.” However, Arnold claims        removing the skin was almost as painful as when he
that Gonzalez provided no evidence (1) that Gonzalez was       injured his arm in the accident. Gonzalez showed his arm
unable to return to a less strenuous workload than prior to    to the jury and demonstrated how much he was able to
the accident and (2) “of his life expectancy or how long       straighten his arm. Gonzalez testified that he cannot feel
he would have continued working.” Thus, Arnold argues          hot or cold on the surface of his grafted skin, but he does
that the jury was required to speculate about Gonzalez’s       feel a lot of pain within the arm.
future earning capacity.
                                                               On cross-examination, Gonzalez testified that he had his
At trial, Gonzalez testified that prior to the accident, he    mechanic’s license and GED, which is a high school
“worked two jobs most of the time” and that he does not        equivalency degree. Gonzalez said that prior to working
feel like the same person anymore because he can no            at AW, he had worked for ten years at a steel company,
longer work and do things around his home that he used         then six months at a molding factory, then one year at a
to be able to do such as cut the trees outside. Gonzalez       car rental company, and then he worked as a
stated that his doctors did not allow him to work for an       self-employed mechanic for approximately two years.
entire year after the accident and that as he understood it,
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      6
Arnold v. Gonzalez, Not Reported in S.W.3d (2015)



According to Gonzalez, while he worked as a mechanic,          *10 Gonzalez testified that he is unable to use his arm
he helped his wife clean banks. Gonzalez worked as a           without feeling pain and that although he tried to use his
fork-lift mechanic for AW for four months prior to his         arm, he was unable to do many of the things he could do
injury.                                                        prior to the accident. Gonzalez stated that he is
                                                               right-handed, and due to the injury, he is in the process of
As stated above, Gonzalez provided evidence of his             learning to use his left hand for simple tasks but he does
capacity to work prior to the injury, including evidence       not have the coordination in his left arm that he had in his
that he had worked as a janitor, at a steel company, a         dominant right arm. Gonzalez testified that his past jobs
molding factory, and as a mechanic. Gonzalez also              have required the use of both arms, including being a
presented evidence that his capacity to work had been          mechanic and that after his injury, he can no longer
impaired as a result of the injury because he could no         perform the job duties of a mechanic because it is too
longer use his arm as he did prior to the accident and that    difficult with only one uninjured arm. The evidence
he could no longer work as a mechanic or a janitor. See        established that Gonzalez has worked in jobs which
Plainview Motels, Inc., 127 S.W.3d at 35.                      require a certain degree of strength and stamina and that
                                                               Gonzalez no longer has the strength and stamina he had
Arnold further argues that the evidence is insufficient        prior to the accident. Gonzalez’s physical therapist,
because Gonzalez merely showed that he worked at AW            Fortino Gonzalez, testified that Gonzalez has permanently
at minimum wage for a few months before the accident.          lost strength and flexibility in various muscles in his arm.
However, Gonzalez testified about his extensive work           And his physician, Donna Mery, M.D., testified that
history prior to the accident and prior to his employment      Gonzalez’s injuries caused permanent damage which
at AW. Moreover, the trial court admitted Gonzalez’s           restricted his use of his right arm. Moreover, Gonzalez
records of his prior employment as a janitor for the ten       testified that he has attempted to perform other types of
months prior to his employment with AW.10 Thus, we             less strenuous work, but has been unable to earn a living.
conclude that Gonzalez introduced evidence sufficient to       In addition, vocational rehabilitation therapist and life
allow the jury to reasonably measure his earning capacity      care planner, Viola Lopez, performed various vocational
in monetary terms. See Id.                                     tests on Gonzalez resulting in her opinion that he was not
                                                               employable in any competitive marketplace due to his
Arnold also complains that Gonzalez provided no                injuries and skillset. In Lopez’s assessment, Gonzalez can
evidence of his life expectancy. However, this Court has       no longer perform physically demanding jobs like those
already determined that “proof of life expectancy is not       he had previous to the accident and he does not have the
required to recover lost future earnings” and that “the jury   skill set to compete for non-physical jobs. Therefore,
may reach its own conclusion on life expectancy based on       Gonzalez presented sufficient evidence for the jury to
evidence of the injured person’s age, health and physical      base its award, and as no general rule can be laid down
condition prior to the injury, and the permanence of the       regarding how the jury makes its loss of future earning
injury.” Borden Inc. v. Guerra, 860 S.W.2d 515, 524–25         capacity damages award, except that each case must be
(Tex.App.—Corpus Christi 1993, writ dism’d by agr.).           judged upon its peculiar facts, we conclude that the
                                                               evidence of damages in this case was sufficient to support
Arnold also argues that Gonzalez was required to show          the jury’s award. See Strauss, 67 S.W.3d at 436
that he could not return to a less strenuous workload than     (explaining that in Mclver v. Gloria, 169 S.W.2d 710, 712
he performed prior to the accident. The jury was asked to      (Tex.1943), the court upheld “the jury’s award of loss of
determine the amount of Gonzalez’s loss of his future          earning capacity, even though the exact amounts of [the
earning capacity if he had not been injured.11 See Strauss,    plaintiff’s] past earnings were not shown, because the
67 S.W.3d at 435 (“Recovery for loss of earning capacity       evidence of the nature and extent of his farming
is not based on the actual earnings lost, but rather on the    operations and the kind and amount of the crops he
loss of capacity to earn money.”); see also Plainview          produced provided the jury with sufficient facts to
Motels, Inc., 127 S.W.3d at 35. In other words, the jury       determine the proper amount of damages.”). We conclude
examined several factors that they believed may have           that there is more than a scintilla of evidence to support
affected Gonzalez’s earning capacity, including his            the jury’s finding on loss of future earning capacity. Thus,
stamina, efficiency, ability to work with pain, and the        viewing the evidence in the light most favorable to the
weakness and degenerative changes which naturally result       verdict, crediting any favorable evidence if a reasonable
from an injury and from long suffered pain and then            fact-finder could and disregarding any contrary evidence
determined how much he suffered in damages for that            unless a reasonable fact-finder could not, we conclude
loss. See Plainview Motels, Inc., 127 S.W.3d at 35.            that the evidence is legally sufficient to support the jury’s
                                                               award of damages for loss of future earning capacity. City

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Arnold v. Gonzalez, Not Reported in S.W.3d (2015)



of Keller, 168 S.W.3d at 821–22, 827.                         factor which may be considered in determining lost
                                                              earning capacity” and Gonzalez provided his tax forms
Next, Arnold argues that the evidence of the damages          and employment records that both included deductions for
awarded to Gonzalez for loss of future earning capacity is    taxes. Big Bird Tree Serv. v. Gallegos, 365 S.W.3d 173,
factually insufficient because there was evidence,            179 (Tex.App.—Dallas 2012, pet. denied). Because
including, among other things, a videotape, showing that      Gonzalez’s past-earnings were only one factor for the jury
Gonzalez is still capable of performing physical work         to consider and the trial court admitted evidence of
such as sweeping and lifting objects over his head. Arnold    Gonzalez’s net income, we cannot conclude that the
claims that Gonzalez admitted his involvement in              evidence is insufficient for this reason. See Plainview
constructing a house and garage on his land, and that he      Motels, Inc., 127 S.W.3d at 35; Border Apparel–East, Inc.
acquired a building permit listing himself as the             v. Guardian, 868 S.W.2d 894, 897 (Tex.App.—El Paso
contractor of that project. Arnold states that “[t]his        1993, no writ) (“The central question to the proper
evidence becomes overwhelming when weighed against            disposition of the instant appeal is not what Appellee
Gonzalez’s gap-riddled and sparse record of prior             actually earned prior to her injury, but what her capacity
earnings.”                                                    to earn a livelihood actually was, and to what extent that
                                                              capacity has been impaired.”).
We disagree with Arnold’s interpretation of Gonzalez’s
testimony. Although Gonzalez stated that he and his wife      *11 Accordingly, we conclude that the verdict is not so
are having a house and garage built on their property, he     contrary to the overwhelming weight of the evidence that
did not testify that he is building the structures himself.   it is clearly wrong and unjust. Mar. Overseas Corp., 971
Gonzalez testified that he applied for a building permit      S.W.2d at 407. Further, the evidence is legally sufficient
and that the permit lists him as the contractor. However,     to support the verdict. We overrule Arnold’s third issue.
Gonzalez denied that he was a contractor for the project
and that the county had filled out the form that he merely
signed. Moreover, Arnold has not pointed to any evidence
in the record that Gonzalez’s designation by the county as
contractor on the building permit contradicts the evidence           V. JOINT AND SEVERAL LIABILITY
that he has suffered loss of his future earning capacity.
Although Arnold emphasizes on appeal that the jury saw        By his final issue, Arnold contends that the trial court
a video of Gonzalez sweeping and also lifting a screen        erred in imposing joint and several liability on Arnold for
door, he does not explain how these acts make the jury’s      damages caused by Gonzalez’s employer, AW. Arnold
finding that Gonzalez lost his future earning capacity so     explains     that   under     the    general     rule,  the
contrary to the overwhelming weight of the evidence that      proportionate-responsibility statute allows the claimant to
the verdict is clearly wrong and unjust,12 especially given   collect from the defendant only the percentage of
that Gonzalez testified that when he swept and lifted the     damages found by the trier of fact, with only one “even
screen door, he could not and did not use his right arm.13    potentially applicable” exception under section 33.013(b),
In addition, Dr. Mery viewed the videos and concluded         which provides that when the defendant’s percentage of
that the videos did not show anything of medical              responsibility is greater than fifty percent, then the
significance in determining Gonzalez’s impairment             defendant is jointly and severally liable for the damages
because the videos did not show the extent of pain            recoverable by the claimant under that section. See TEX.
Gonzalez experienced when he swept and lifted the screen      CIV. PRAC. & REM.CODE ANN. § 33.013(b) (West,
door.                                                         Westlaw through Ch. 46 2015 R.S.). Arnold argues that
                                                              the jury found AW negligent and attributed twenty
Next, Arnold argues that the evidence was factually           percent of the responsibility for the accident to AW; thus,
insufficient because Gonzalez’s damages for loss of           because AW is immune from suit under the TWCA, the
future earning capacity was “not reduced to net present       damages the jury attributed to AW are not “damages
value or to account for taxes that Gonzalez would have        recoverable by the claimant” within the meaning of
paid on his earnings.” See TEX. CIV. PRAC. &                  section 33.013(b) of the Texas Civil Practice and
REM.CODE ANN. § 18.091(a) (West, Westlaw through              Remedies Code.
Ch. 46 2015 R.S.) (requiring claimant of loss of earnings
to provide “evidence to prove the loss ... in the form of a   The San Antonio court of appeals in Bay Rock Operating
net loss after reduction for income tax payments or unpaid    Co. v. St Paul Surplus Lines Insurance Co., cited by both
tax liability pursuant to any federal income tax law”).       parties, in interpreting section 33.013(b) stated that
However, “evidence of actual past-earnings is only one
                                                                          the plain language of section
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Arnold v. Gonzalez, Not Reported in S.W.3d (2015)



            33.013(b)(1) simply does not make                      percentage of responsibility, especially in those instances
            the application of joint and several                   where, as here, the defendant is precluded from seeking
            liability dependent upon whether or                    contribution from the responsible third party”).
            not another person, such as a
            responsible third party, can or will                   Therefore, here although it appears that AW cannot or
            ultimately pay for its share of                        will not ultimately pay for its share of its responsibility
            responsibility; the only requirement                   due to the TWCA’s immunity clause, under section
            is that the liable defendant meets                     13.013(b), it does not matter. Arnold is still jointly and
            the threshold percentage of fault.                     severally liable because the jury attributed sixty- five
                                                                   percent of the liability to him; thus, the threshold
298 S.W.3d 216, 233 (Tex.App.—San Antonio 2009, pet.               percentage of fault has been met. We overrule Arnold’s
denied). In addition, the court explained that under the           final issue.
plain language of the statute, “If the threshold is met, a
liable defendant bears not only its proportionate
responsibility under section 33.013(a), but also assumes
joint and several liability for all recoverable damages
under section 33.013(b)(1).” Id. We find the Bay Rock                                 VI. CONCLUSION
court’s interpretation of 33.013(b) persuasive, and agree
                                                                   *12 We affirm the trial court’s judgment.
that pursuant to section 33.013(b), so long as the
threshold of more than fifty percent liability is met, then
the defendant may be held jointly and severally liable,
regardless of whether the responsible third party can or           All Citations
will pay for its share of responsibility. See id. at 232–233
(disagreeing with defendant’s argument “that it is unfair          Not Reported in S.W.3d, 2015 WL 5109757
for it to be held jointly and severally liable for all
damages when another person has been assigned a

Footnotes
1      Gonzalez also sued L & M Companies, claiming it too occupied the premises where Gonzalez had been injured. L & M
       had leased a portion of the facility from Arnold.
2      It was Arnold’s burden at trial to prove his affirmative defense of the TWCA’s exclusive remedy provision. Therefore,
       our analysis is the same whether Arnold claims to be AW’s employee or agent.
3      In his brief, Arnold does not argue that he acted in furtherance of AW’s interests when he designed the layout of the
       warehouse. Instead, he claims that it was undisputed that he was AW’s employee or agent as a matter of law. In his
       reply brief, Arnold states that it was undisputed that he undertook all actions regarding the warehouse in his capacity
       as AW’s agent or employee because that is the only evidence that was presented. We disagree because whether he
       was acting in furtherance of his duties as an AW employee is a question of fact for the jury to have determined. Thus,
       they were free to believe or disbelieve Arnold that he set up the warehouse in furtherance of AW’s interests and not
       because he planned on leasing the premises to other companies such as L & M. See Arbelaez v. Just Brakes Corp.,
       149 S.W.3d 717, 720 (Tex.App.—Austin 2004, no pet) (citing GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 618
       (Tex.1999); Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 515 (Tex.1995)). Moreover, there was evidence
       that Arnold designed the configuration of the complained-of mechanisms and that those machines, which included a
       processing line conveyor, were fixed in place in the warehouse for years and attached to mechanized pieces of
       equipment that were affixed to the walls of the warehouse and bolted to the floors— acts that a jury could have
       believed were undertaken in order to rent the facility to other entities.
4      Arnold also argues that by holding him responsible for Gonzalez’s injury, the trial court, in essence, applied the dual
       capacity doctrine, which has not been adopted by the Texas Supreme Court and has been rejected by some Texas
       courts of appeals. The dual capacity doctrine provides that although an employer is usually shielded from tort liability
       by the exclusive remedy principle of the TWCA, the employer may become liable to his own employee, who received
       workers’ compensation benefits, if the employer occupies a second capacity that generates obligations unrelated to
       those flowing from its primary capacity as an employer. Payne v. Galen Hosp. Corp., 28 S.W.3d 15, 20 (Tex.2000).
       The dual capacity doctrine is applicable in cases where the employer/defendant is entitled to claim immunity from suit
       under the TWCA. See id.

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         9
Arnold v. Gonzalez, Not Reported in S.W.3d (2015)



        We disagree with Arnold that this case implicates the dual capacity doctrine because Arnold did not show that he is
        entitled to immunity under the TWCA as explained above. It was not conclusively established that Arnold was acting
        as an ‘agent, servant, or employee’ within the meaning of the TWCA for whose conduct AW would have been legally
        responsible under the doctrine of respondeat superior. See Burkett v. Welborn, 42 S.W.3d 282, 288–89
        (Tex.App.—Texarkana 2001, no pet.) (concluding that coemployee who owned premises was not entitled to the
        workers’ compensation defense because there was no evidence that the employer could be held vicariously liable for
        the co-employee’s liability as a premises owner to an invitee). Thus, the dual capacity doctrine is inapplicable to the
        facts of this case.
5     Arnold testified that he owned the premises where Gonzalez was injured and that AW was his lessee. Arnold makes no
      argument on appeal that AW was an independent contractor and points to no evidence in the record supporting such a
      conclusion.
6     See Schievink v. Wendylou Ranch, Inc., 227 S.W.3d 862, 867 (Tex.App.— Eastland 2007, pet. denied) (“One who
      entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for
      physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his
      failure to exercise his control with reasonable care.”).
7     Earning capacity has been defined as the “ability and fitness to work in gainful employment for any type of
      remuneration, including salary, commissions, and other benefits, whether or not the person is actually employed.”
      Strauss v. Cont’l Airlines, Inc., 67 S.W.3d 428, 435 (Tex.App.—Houston [14th Dist.] 2002, no pet.).

8     Gonzalez testified that he was forty-nine at the time of the accident.

9     The trial court admitted Gonzalez’s medical records, and Gonzalez testified that he had five surgeries after the
      accident and that amputation had been discussed.
10    Arnold complains that these employment records are mostly illegible. However, our appellate record consists of copies.
      The original employment records that were admitted at trial have not been included in the appellate record. We are
      able to read some of the copies of Gonzalez’s employment records included in the appellate record.
11    Moreover, there was conflicting evidence regarding whether Gonzalez is able to perform any type of work, including
      less strenuous work.
12    Gonzalez presented evidence to show that he is unable to perform other less strenuous jobs, and Arnold points to no
      evidence in the record showing that someone who can sweep and who can lift a screen door is necessarily able to
      perform other more strenuous jobs.
13    The video is not included in the appellate record, and Arnold does not complain of its omission. The record contains a
      description of Gonzalez’s acts in the video, however.




End of Document                                               © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             10
                  THE THIRTEENTH COURT OF APPEALS

                                   13-13-00440-CV


                                DANIEL E. ARNOLD
                                        v.
                               GERARDO GONZALEZ


                                  On Appeal from the
                    398th District Court of Hidalgo County, Texas
                            Trial Cause No. C-1442-11-I


                       AMENDED CORRECTED JUDGMENT

      THE THIRTEENTH COURT OF APPEALS, having considered this cause on

appeal, concludes that the judgment of the trial court should be AFFIRMED. The Court

orders the judgment of the trial court AFFIRMED.     Costs of the appeal are adjudged

against the appellant, DANIEL E. ARNOLD, and ARCH INSURANCE COMPANY, as

surety on the supersedeas bond, and judgment is rendered against the appellant,

DANIEL E. ARNOLD, and ARCH INSURANCE COMPANY, as surety on the

supersedeas bond.

      We further order this decision certified below for observance.

August 28, 2015
APPENDIX
  Tab 4
LABOR CODE CHAPTER 408. WORKERS' COMPENSATION BENEFITS                Page 1 of 1



                                                LABOR CODE

                                 TITLE 5. WORKERS' COMPENSATION

                        SUBTITLE A. TEXAS WORKERS' COMPENSATION ACT

                        CHAPTER 408. WORKERS' COMPENSATION BENEFITS

                                SUBCHAPTER A. GENERAL PROVISIONS

      Sec. 408.001. EXCLUSIVE REMEDY; EXEMPLARY DAMAGES. (a) Recovery of
workers' compensation benefits is the exclusive remedy of an employee covered
by workers' compensation insurance coverage or a legal beneficiary against
the employer or an agent or employee of the employer for the death of or a
work-related injury sustained by the employee.
      (b) This section does not prohibit the recovery of exemplary damages
by the surviving spouse or heirs of the body of a deceased employee whose
death was caused by an intentional act or omission of the employer or by the
employer's gross negligence.
      (c) In this section, "gross negligence" has the meaning assigned by
Section 41.001, Civil Practice and Remedies Code.
      (d) A determination under Section 406.032, 409.002, or 409.004 that a
work-related injury is noncompensable does not adversely affect the exclusive
remedy provisions under Subsection (a).

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.
Amended by:
      Acts 2005, 79th Leg., Ch. 265, Sec. 3.077, eff. September 1, 2005.




http://www.statutes.legis.state.tx.us/Docs/LA/htm/LA.408.htm           1/20/2014
APPENDIX
  Tab 5
                          •        CAUSE NO. C-1442-11-1
                                                                      •
GERARDO GONZALEZ,                                    §
    Plaintiff                                        §
                                                     §                            By-Hqg..,..l.C::,L[::~,De
                                                                1
vs.                                                  §       398 b   JUDICIAL DIST
                                                     §
                                                     §
DANIEL E. ARNOLD,                                    §
     Defendants                                      §       IDDALGO COUNTY, TEXAS



                      DEFENDANT'S REQUESTED QUESTION
                    REGARDING PREMISES LIABILITY BASED ON
                   NEGLIGENT ACTIVITY OR PREMISES DEFECT-
                              RIGHT OF CONTROL


TO THE HONORABLE JUDGE OF SAID COURT:

       Defendant, Daniel Arnold, individually, requests that the following be included in the

Court's Charge to the Jury:

       QUESTION_ __

        Did Daniel E. Arnold, Individually, exercise or retain some control over the manner in
which the injury causing activity was performed, other than the right to order the work to start or
stop or to inspect progress or receive reports?

       Answer "Yes" or "No."

       Answer: _ _ _ __

       Authority:    Premises Liability Based on Negligent Activity or Premises Defect-
Right of Control PJC 66.3                          /




                                                                        ,.        121
                          •                                      •
                                                Respectfully submitted,




                                                RAY, VALDEZ, McCHRISTIAN & JEANS, P.C.
                                                1250N.E. Loop410, Ste. 700
                                                San Antonio, Texas 78209
                                                Phone: 210-341-3554
                                                Fax: 210-341-3557

                                                ATTORNEYS FOR DEFENDANT
                                                DANIEL E. ARNOLD, INDIVIDUALLY




                                 CERTIFICATE OF SERVICE

The foregoing has been served ~n counsel of    r~cord   pursuant to Rule 21a, Texas Rules of

Civil Procedure on this   /   tj _,. day of ~           2013.




                                                                       122
                                           2
                            •                                    •
       The foregoing having been presented to me before the Court's presentation of its Charge

of the Court to the jury, is hereby:

       GRANTED:

       DENIED:         _   _.K_'---=----
       MODIFIED:

        SIGNED THIS         CJ ,s=      DAYOF      ~            ,2013


                                                         ct~)~ ~·
                                                                 Judge Presiding




                                                                     ,,       12 3


                                              3
