      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                               ON MOTION FOR REHEARING



                                       NO. 03-07-00658-CV



                                     Larry Brooks, Appellant

                                                  v.

     Mass Marketing, Ltd., f/k/a Mass Marketing, Inc., d/b/a Super S Foods, Appellee


     FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
          NO. C2004-0497B, HONORABLE DIB WALDRIP, JUDGE PRESIDING



                             MEMORANDUM OPINION


               We withdraw our opinion and judgment of December 8, 2009, and substitute the

following opinion in place of the earlier one.

               Larry Brooks sued Mass Marketing, Ltd., doing business as Super S Foods

(“Super S”), for injuries he sustained in a slip-and-fall accident at a Super S store. Brooks obtained

a favorable jury verdict of $75,000, and Super S filed a motion for judgment notwithstanding the

verdict. The trial court granted the motion in part and reduced Brooks’s award to $25,000. On

appeal, Brooks argues that the trial court erred in granting the motion because the evidence was

sufficient to support the $75,000 award. We will affirm.
                       FACTUAL AND PROCEDURAL BACKGROUND

                 Larry Brooks allegedly injured his back when he slipped and fell on a wet floor at a

Super S grocery store. Approximately one month earlier, Brooks had slipped and fallen at an HEB

grocery store. In his suit against Super S, Brooks alleged that the two incidents were unrelated and

that his back injury (which eventually required two surgeries) was due entirely to his fall at the

Super S store.

                 At trial, Brooks testified that he was working up until his fall at the Super S store but

was unable to work after the fall. Brooks’s brother testified to the same effect. Brooks also testified

that he was earning approximately $28,000 per year before the fall. Brooks did not testify about

what his federal income tax rate was at the time, nor did he put on any witnesses (expert or

otherwise) who addressed that issue in any respect.

                 In addition, there was substantial testimony and argument about whether Brooks had,

before his fall at the Super S store, applied and been approved for Social Security disability payments

based on a prior accident or condition.

                 The jury returned a verdict in Brooks’s favor, finding that Super S’s negligence in

inadequately marking the wet floor proximately caused Brooks’s fall. The jury awarded Brooks

$10,000 for physical pain and suffering, $10,000 for past physical impairment, $5,000 for future

physical impairment, and $50,000 for past lost earning capacity. The jury awarded nothing for future

lost earning capacity. The trial court initially signed a final judgment that ordered Super S to pay

Brooks the full $75,000 in damages found by the jury.




                                                    2
               Super S subsequently filed a motion for judgment notwithstanding the verdict in

which it argued that (1) Brooks failed as a matter of law to prove that his fall at the Super S store

proximately caused his injuries; (2) Brooks was judicially estopped from claiming that his lost

earning capacity resulted from his fall at the Super S store;1 and (3) Brooks’s testimony was not

credible and therefore could not support a favorable jury verdict. At the hearing on the motion,

Super S also argued that there was an irreconcilable conflict between the jury’s finding of $50,000

in past lost earning capacity and its finding of $0 in future lost earning capacity. The trial court

requested supplemental briefing on the lost-earning-capacity issue, and in a supplemental brief

Super S asserted that Brooks’s evidence regarding his loss of earning capacity violated Texas Civil

Practice and Remedies Code section 18.091 because it was not presented in the form of a net loss

after reduction for federal income taxes. See Tex. Civ. Prac. & Rem. Code Ann. § 18.091(a) (West

2008) (“section 18.091”) (evidence of lost earning capacity must reflect impact of income taxes).

Super S asserted that, as a result of Brooks’s failure to comply with this statutory mandate, the

testimony concerning his past earnings constituted no evidence of lost earning capacity.

               The trial court found at least one of Super S’s arguments meritorious, though it did

not specify which, and accordingly rendered an “amended final judgment” that set aside the jury’s

finding of $50,000 in past lost earning capacity. The remainder of the judgment was not changed.


       1
          Super S’s motion does not clearly explain the basis for this judicial-estoppel argument.
From reading the transcript of the hearing on the motion, however, it is apparent that Super S was
arguing that Brooks was judicially estopped from claiming his fall at the Super S store diminished
his earning capacity because he had previously claimed disability in sworn documents he filed with
the Social Security Administration. See Pleasant Glade Assembly of God v. Schubert, 264 S.W.3d 1,
6 (Tex. 2008) (doctrine of judicial estoppel “precludes a party from adopting a position inconsistent
with one that it maintained successfully in an earlier proceeding”).

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On appeal, Brooks argues that the court erred in disregarding the jury’s finding of $50,000 in past

lost earning capacity.


                                          DISCUSSION

               As noted above, Super S made five arguments to support its motion for judgment

notwithstanding the verdict. At least two of these—judicial estoppel and section 18.091—were in

writing and specifically related to the award of past lost earning capacity. In its amended judgment

disregarding the jury’s award of $50,000 for that category of damages, the trial court did not specify

which of these arguments it found meritorious. On appeal, therefore, Brooks “has the burden of

showing that the judgment cannot be sustained on any of the grounds stated in the motion.” Fort

Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex. 1991). This means that we must

affirm the judgment if (1) any ground stated in Super S’s motion was meritorious, or (2) Brooks

failed to raise any of the grounds as an appellate issue. See Ballesteros v. Jones, 985 S.W.2d 485,

498-99 (Tex. App.—San Antonio 1999, pet. denied) (“Jones’s motion for judgment notwithstanding

the verdict rested on several independent grounds. Because the trial court’s judgment did not specify

which grounds it was granted on, Ballesteros had the burden to establish that the judgment could not

be supported on any of the grounds set out in Jones’s motion. Otherwise, Ballesteros has waived her

right to question any ground not challenged.”) (citations omitted); Herndon v. First Nat’l Bank,

802 S.W.2d 396, 400 (Tex. App.—Amarillo 1991, writ denied) (“[W]here the judgment of the trial

court rests upon two or more independent grounds, the appellant must attack each ground on appeal

or the judgment must be affirmed as resting upon a ground not brought forward as error.”); Monk

v. Dallas Brake & Clutch Serv. Co., 697 S.W.2d 780, 783-84 (Tex. App.—Dallas 1985, writ ref’d

                                                  4
n.r.e.) (appellant fails to carry his burden if he does not address each ground on which trial court

might have granted motion for judgment notwithstanding verdict) (citing, inter alia, McKelvy

v. Barber, 381 S.W.2d 59, 62 (Tex. 1964)).

               We hold that Brooks has “waived [his] right to question” at least two of Super S’s

grounds for judgment notwithstanding the verdict. Ballasteros, 985 S.W.2d at 499. Brooks’s

appellate brief does not even mention, much less rebut, Super S’s arguments regarding judicial

estoppel and section 18.091.2 Without addressing the merits of these arguments, we note that either

or both of them might have been the basis on which the trial court granted Super S’s motion for

judgment notwithstanding the verdict. Because Brooks failed to raise these arguments in his

appellant’s brief, he has waived any challenge to those grounds. Accordingly, we must affirm the

judgment. See Monk, 697 S.W.2d at 84 (affirming judgment notwithstanding verdict because

appellant failed to address each ground that might have been basis of judgment).


                                         CONCLUSION

               Because Brooks failed to challenge all grounds on which the trial court might have

granted Super S’s motion for judgment notwithstanding the verdict, we affirm the judgment.




       2
           Brooks eventually addressed section 18.091 in his response to Super S’s motion for
rehearing, but at that point it was too late to raise it as an issue for review. See Tex. R. App. P.
38.1(f) (appellant’s brief “must state concisely all issues or points presented for review”); Secure
Comm, Inc. v. Anderson, 31 S.W.3d 428, 431 (Tex. App.—Austin 2000, no pet.) (affirming
judgment because appellant’s opening brief “does not complain on appeal about all possible bases
for the judgment”). Brooks never addressed Super S’s judicial-estoppel argument.

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                                           __________________________________________

                                           J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Puryear and Pemberton

Affirmed on Motion for Rehearing

Filed: April 6, 2010




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