Opinion issued December 11, 2014.




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-13-01062-CV
                           ———————————
        BRENDA HERBERT, THE ESTATE OF HENRY BOLTON,
                       AND RUBY BOLTON, Appellants
                                        V.
                          LAURA URBINA, Appellee



                    On Appeal from the 80th District Court
                            Harris County, Texas
                      Trial Court Case No. 2012-27671



                         MEMORANDUM OPINION

      Brenda Herbert, Ruby J. Bolton, and the Estate of Henry D. Bolton,

deceased (collectively, the Boltons), appeal the trial court’s judgment in favor of

Laura Urbina, the Boltons’ former employee, on her claim for breach of an oral
employment agreement, bringing legal and factual insufficiency challenges. We

hold that legally sufficient evidence supports the jury’s verdict and that the Boltons

waived their factual insufficiency challenge. We therefore affirm.

                                    Background

      In April 2010, the Boltons hired Urbina, an experienced certified nurse

assistant, to provide in-home nursing care for Mr. Bolton, who was bedridden.

They agreed to pay her $10 an hour to care for Mr. Bolton from four to five hours a

day and to provide her with room and board.

      When she arrived, Urbina found the house dirty and disordered. In addition

to her nursing duties, the Boltons asked Urbina to perform various cleaning and

household chores. During the first two weeks, Urbina worked approximately

twelve to sixteen hours a day. When Urbina received her first paycheck after three

weeks, it compensated her for only five hours a day. She confronted Mrs. Bolton

about the discrepancy, and Mrs. Bolton agreed to pay her more.

      The Boltons’ insurance company provided Patient Care Flow Sheet forms

for recording the hours that Urbina provided care for Mr. Bolton and itemizing the

nursing duties she performed. Mrs. Bolton asked Urbina to sign the blank forms

and told Urbina that she would complete them later. Each of the checks written

out to Urbina was in an amount that corresponded to an itemized form.




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      Urbina had been working for the Boltons for about four months when Mrs.

Bolton fell ill. By then, the Boltons were paying Urbina for eight-hour days.

Urbina assumed the additional responsibility of caring for Mrs. Bolton, helping her

get to the restroom and dress herself. Urbina was working seventeen- to eighteen-

hour days. The Boltons also asked her to take care of the yard and occasionally to

cook meals and take care of the dishes and laundry. She spoke with Mrs. Bolton

about paying her for the additional responsibilities, and Mrs. Bolton again agreed

to pay her more. The Boltons, however, did not fully compensate Urbina for the

hours she worked. Beginning in January 2011, Urbina began keeping her own

records of the hours she worked.

      In 2011, Mrs. Bolton broke her hip and, as a result, needed specialized care

that Urbina was not qualified to provide. In August 2011, the Boltons’ daughter,

Brenda Herbert, terminated Urbina’s employment.

      Urbina sued the Boltons, seeking unpaid wages for breach of an oral

employment contract. The Boltons counterclaimed, also suing for breach of an

oral employment contract.

      The parties tried their claims to a jury. The charge agreed to by the parties

submitted a single liability question to the jury which, in its entirety, read: “Did

the Defendants fail to comply with the oral employment agreement of Urbina?”

The jury answered “yes,” and awarded Urbina $11,000 in compensatory damages.



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      The Boltons moved for judgment notwithstanding the verdict, contending

that the evidence did not support the jury’s verdict because the award exceeded the

total of the payments reflected in the Patient Care Flow Sheets and was

unsupported by other evidence. The trial court denied the motion and rendered

judgment on the jury’s verdict.

                                    Discussion

I.    Legal Sufficiency Challenge

      A.    Standard of review

      The Boltons contend that, by signing the Patient Care Flow Sheet forms,

Urbina restricted her compensation to the amount shown on those sheets as a

matter of law, so that the evidence is legally insufficient to support the jury’s

$11,000 award. In reviewing a legal sufficiency challenge to the evidence, we

view the evidence in the light most favorable to the finding, crediting favorable

evidence if a reasonable fact finder could, and disregarding contrary evidence

unless a reasonable fact finder could not. City of Keller v. Wilson, 168 S.W.3d

802, 822, 827 (Tex. 2005). The appellant must demonstrate that there is no

evidence to support the finding when he attacks the legal sufficiency of a finding

on which he did not have the burden of proof. See Exxon Corp. v. Emerald Oil &

Gas Co., L.C., 348 S.W.3d 194, 215 (Tex. 2011). We may not sustain a legal

sufficiency or no-evidence point unless the record demonstrates that: (1) there is a



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complete absence of a vital fact; (2) the court is barred by the rules of law or of

evidence from giving weight to the only evidence offered to prove a vital fact;

(3) the evidence to prove a vital fact is no more than a scintilla; or (4) the evidence

established conclusively the opposite of the vital fact. City of Keller, 168 S.W.3d

at 810. The fact finder is the sole judge of the witnesses’ credibility and the weight

to give their testimony. Id. at 819.

      B.     Analysis

      The Patient Care Flow Sheet requires completion of sections entitled “Client

Name” and “Caregiver Name,” and it contains boxes to check for various

caretaking duties performed and their frequency. It requires the signatures of both

the client and the employee-caregiver with certifications accompanying each

signature. The employee “certif[ies] that the hours and days shown on this Patient

Care Flow Sheet Weekly Pay Documentation is the exact amount of hours and

days worked by [the employee] during the week indicated, and were properly

certified by the client.” The certification admonishes that “[a]ny person who

knowingly and with intent to injure, defraud, or deceive any insurance company

. . . is subject to criminal prosecution.” The Boltons contend that the forms signed

by Urbina constitute an unambiguous written agreement that cannot be varied with

other evidence.




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      Both sides pleaded breach of an oral employment agreement, however, and

neither objected to submission of that claim to the jury. We therefore address the

sufficiency of the evidence in light of the charge given to the jury. See Osterberg

v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (explaining that when charge is submitted

without objection, sufficiency of evidence is measured against charge given).

      That evidence included more than the written care flow sheet forms.

Undisputed evidence shows that Urbina performed housekeeping duties in addition

to the caregiving duties she provided to Mr. Bolton. The flow sheets do not

address Urbina’s housekeeping duties. The dispute at trial centered on the number

of hours Urbina worked performing these housekeeping duties, for which the

Boltons owed Urbina payment.       Urbina’s testimony and her handwritten records

support the jury’s award. The jury’s verdict in favor of Urbina reflects a credibility

determination that we may not disturb on appeal. See City of Keller, 168 S.W.3d at

819. We hold that legally sufficient evidence supports the jury’s findings.

II.   Factual Sufficiency Challenge

      The Boltons also contend that the evidence is factually insufficient to

support the verdict. The Boltons, however, failed to present a motion for new trial

challenging the factual sufficiency of the complained-of evidence. Their failure to

raise their factual sufficiency challenge in a motion for new trial waives their




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complaint. See TEX. R. CIV. P. 324(b)(2); Cecil v. Smith, 804 S.W.2d 509, 512

(Tex. 1991).

                                   Conclusion

      We hold that legally sufficient evidence supports the jury’s verdict and that

the Boltons waived their factual sufficiency challenge. We therefore affirm the

judgment of the trial court.




                                            Jane Bland
                                            Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.




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