Arturo Contreras and Patricia Gutierrez, as Next Friends for Arturo Lucas Contreras and Angel Manuel Contreras, Minor Children v. Security Well Service, Inc.--Appeal from 229th Judicial District Court of Duval County

MEMORANDUM OPINION
No. 04-03-00149-CV
Arturo CONTRERAS, Individually and with Patricia Gutierrez as Next Friends for

Arturo Lucas Contreras and Angel Manuel Contreras,

Appellants
v.
SECURITY WELL SERVICE, INC.,
Appellee
From the 229th Judicial District Court, Duval County, Texas
Trial Court No. 97-11-17132-A
Honorable Alex W. Gabert, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: March 3, 2004

AFFIRMED

Arturo Contreras was involved in an accident while riding as a passenger in his employer's vehicle. Arturo filed suit against his employer, Security Well Service, Inc., claiming the company was negligent in maintaining its vehicle. A jury determined that Arturo's injuries occurred during the course and scope of his employment with Security Well Service, Inc. As a result of this finding, the trial court entered a take nothing judgment in favor of Security Well Service, Inc. because recovery of workers' compensation benefits is the exclusive remedy for an employee injured during the course and scope of his employment when the employee is covered by workers' compensation insurance. Arturo, individually and with Patricia Gutierrez as next friend of Arturo Lucas and Angel Manuel Contreras, challenge the trial court's judgment. We affirm.

Background

Security Well Service, Inc. ("SWS") was a family-owned oil company based in Freer, Texas. The company provided drilling crew members to oil rigs throughout South Texas. Arturo Contreras worked for SWS as a drilling crew member. He, along with his brothers, Juan and Javier, his father, Tanis, and Roberto Trevi o formed the Contreras Crew.

On June 2, 1997, SWS assigned the Contreras Crew to a rig on the King Ranch, which is located approximately 100 miles south of Freer, Texas. SWS provided the Contreras Crew with a company vehicle to transport the men to the King Ranch rig site. (1) The vehicle SWS furnished, however, was in poor condition. The vehicle had a broken speedometer, bad clutch, bad brakes, broken interior dashboard lights, and a damaged spare tire.

The Contreras Crew was ordered to enter the King Ranch through the Stillman gate, where the crew was required to check in upon its arrival and check out upon its departure. After entering the King Ranch, the Crew had to drive for approximately thirty to forty-five minutes over a pothole-covered road to reach the rig site. The Contreras Crew's workday did not begin until the crew actually reached the rig site.

After reaching the rig site on June 2, 1997, Arturo Contreras became ill. Due to Arturo's condition, and because he had to meet with his parole officer the next day, SWS authorized Arturo to return to his home in San Diego, Texas at the end of his shift. Javier Contreras was authorized to drive Arturo to San Diego, where Javier was further instructed to pick up a replacement drilling crew member.

As Javier drove Arturo and the other crew members to the Stillman Gate, he drove over a pothole. The pothole caused a tire on the Crew's vehicle to blow out, which, in turn, caused the Crew's vehicle to roll over. Several members of the Crew were injured during the accident, including Arturo. The accident left Arturo a paraplegic.

Although Arturo received workers' compensation benefits for his injuries, Arturo, individually and with Patricia Gutierrez as next friend of Arturo Lucas and Angel Manuel Contreras (the "Contrerases"), filed a negligence suit against SWS and Javier Contreras. Javier moved for summary judgment, claiming the Texas Worker's Compensation Act barred Arturo's negligence claim. The trial court granted Javier's motion and severed Javier from the lawsuit. The trial court, however, later granted the Contrerases' motion for new trial and set aside the order granting Javier's motion for summary judgment.

The Contrerases eventually nonsuited Javier and proceeded to trial against SWS. The jury subsequently determined that Arturo was acting in the course and scope of his employment at the time he was injured. As a result of this finding, the trial court entered a take nothing judgment in favor of SWS because the recovery of workers' compensation benefits is the exclusive remedy for an injured employee covered by workers' compensation insurance coverage. See Tex. Labor Code Ann. 408.001(a) (Vernon 1996). Following the trial court's denial of the Contrerases' motion for new trial, this appeal ensued. The Contrerases raise four issues on appeal: (1) whether the trial court submitted a defective charge to the jury; (2) whether there is legally sufficient evidence to support the jury's finding; (3) whether there is factually sufficient evidence to support the jury's finding; and (4) whether the trial court erred in denying their motion for new trial when one of the jurors was statutorily disqualified from jury service.

Jury Charge

In their first issue, the Contrerases contend the trial court submitted a defective charge to the jury. The Contrerases' complaint focuses on question number one from the court's charge:

Did Arturo Contreras'[s] injury of June 2, 1997 occur in the course and scope of employment?

"Course and scope of employment" means an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer. The term includes an activity conducted on the premises of the employer or at other locations. The term does not include:

(A) transportation to and from the place of employment unless:

(I) the transportation is furnished as a part of the contract of employment or is paid for by the employer;

(ii) the means of the transportation are under the control of the employer; or

(iii) the employee is directed in the employee's employment to proceed from one place to another place; or

(B) travel by the employee in the furtherance of the affairs or business of the employer if the travel is also in furtherance of personal or private affairs of the employee unless:

(I) the travel to the place of occurrence of the injury would have been made even had there been no personal or private affairs of the employee to be furthered by the travel; and

(ii) the travel would not have been made had there been no affairs or business of the employer to be furthered by the travel.

"Course and scope of employment" is not limited to the exact moment when the employee reports for work, the moment when the employee's labors are completed, or to the place where work is done.

Answer "Yes" or "No"

The Contrerases complain the court's instruction misstates the law because it includes language from the Texas Workers' Compensation Act that does not apply to the case at bar. They further complain the instruction misstates the law because it erroneously implies that "if an employer pays for an employee's transportation, that the Texas Workers' Compensation Act covers the employee's injuries, regardless of when or where they occur." Lastly, the Contrerases complain the instruction is too complex and confusing.

A. Dual Purpose Language

The Contrerases contend the trial court should not have instructed the jury that the term course and scope does not include:

(B) travel by the employee in the furtherance of the affairs or business of the employer if the travel is also in furtherance of personal or private affairs of the employee unless:

(I) the travel to the place of occurrence of the injury would have been made even had there been no personal or private affairs of the employee to be furthered by the travel; and

(ii) the travel would not have been made had there been no affairs or business of the employer to be furthered by the travel.

According to the Contrerases, the trial court should have omitted the aforementioned language because Arturo was not injured while traveling for both personal and business reasons; rather, he was furthering his own affairs at the time he was injured. The Contrerases therefore contend that the inclusion of this "dual purpose" language constitutes a misstatement of the law. (2)

When an instruction included in the trial court's charge is defective, the complaining party must make a specific objection pointing out the matter complained of and the ground of the objection. Tex. R. Civ. P. 274; Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex. 1994); Castleberry v. Branscum, 721 S.W.2d 270, 276-77 (Tex. 1986). A party is confined to the jury-instruction objection made at trial; any variant complaint on appeal is waived. Lakeway Land Co. v. Kizer, 796 S.W.2d 820, 825 (Tex. App.--Austin 1990, writ denied).

At the charge conference, the Contrerases raised the following objection:

For the record, Plaintiffs have no objection to the charge as submitted with corrections by the Court and subject to the agreement of the parties and Plaintiffs would request a five minute opportunity to review the final version before it goes to the jury.

. . .

Oh I'm sorry. I need to qualify that. He was right. We do have one objection that we'd like to have on the record and that is that we would ask, we would -- we are of the opinion that the correct charge on the issue of liability -- let me get right to it. On the issue of course and scope it needs to be Plaintiff's proposed charge page 7, Plaintiffs state for the record they object to the question as submitted and propose the following question instead. "Did Arturo Contreras'[s] injury of June 2, 1997, occur in the course and scope of his employment by Security Well Service Inc.?" And then underneath that the following instruction. "An employee is acting in the scope of his employment if he is acting in the furtherance of his -- of the business of his employer. Answer Yes or No." And the basis of our objection is that neither the defense nor the cause of action are statutory, but rather common law and that PJC 7.6 adequately states that common law that said what Plaintiffs agreed to, given that the Court intends to submit the statutory special issue, the Court has agreed and opposing counsel has agreed to include that subsection (b) language.

It is evident that the only objection voiced by the Contrerases was that "neither the defense nor the cause of action are statutory, but rather common law and that PJC 7.6 adequately states that common law. . . ." Not only does this objection lack merit, see Tex. Labor Code Ann. 408.001 (Vernon 1996), it does not inform the court of the Contrerases' dual purpose complaint. See Castleberry, 721 S.W.2d at 276. By not clearly pointing out the matter complained of in the trial court, the Contrerases have failed to preserve their dual purpose complaint for our review. See id.

B. Employee Transportation

The Contrerases further contend the court's instruction constitutes a misstatement of the law because it erroneously implies that "if an employer pays for an employee's transportation, that the Texas Workers' Compensation Act covers the employee's injuries, regardless of when or where they occur." Again, the Contrerases failed to raise their objection in the trial court. By not raising this matter in the trial court, the Contrerases failed to preserve their argument for our review. See id.

C. Confusing Nature of the Instruction

Lastly, the Contrerases complain the court's instruction is too complex and confusing. Once again, the Contrerases' failed to raise this objection in the trial court. By not clearly pointing out the matter complained of at the charge conference, the Contrerases failed to preserve their argument for our review. See id. Because the Contrerases did not preserve any of the complaints raised under their first issue, issue one is overruled.

Legal Sufficiency of the Evidence

In their second issue, the Contrerases allege there is legally insufficient evidence to support the jury's finding that Arturo's injuries occurred during the course and scope of his employment. To properly preserve a legal sufficiency complaint for appeal after a jury trial, an appellant must do one of the following: (1) move for an instructed verdict; (2) move for judgment notwithstanding the verdict; (3) object to the submission of the jury question; (4) move to disregard the jury finding; or (5) move for a new trial. Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex. 1991).

The Contrerases claim they preserved their legal sufficiency complaint because they filed a written objection to the submission of the course and scope issue. The record reflects that on the afternoon of the charge conference, the Contrerases filed a document titled "Plaintiffs' Proposed Charge To The Jury: Alternative Issues, Definitions, and Instructions." In this document, the Contrerases object to the submission of the course and scope issue because "Security Well . . . offered legally insufficient evidence to submit a question on this issue . . . ." The record, however, reflects that the Contrerases voluntarily abandoned this objection at the charge conference.

At the charge conference, the trial court afforded the Contrerases an opportunity to raise all of their complaints concerning the court's charge. As previously noted, the Contrerases informed the court that they had only one objection to voice. By notifying the court that the aforementioned objection was their sole objection to the charge, the Contrerases essentially informed the court that they were abandoning any charge complaints raised in "Plaintiff's Proposed Charge To The Jury," including their objection to the submission of the course and scope question. Because the Contrerases abandoned their objection to the submission of the course and scope question at the charge conference, they may not resurrect the objection on appeal.

Although the Contrerases filed a motion for new trial, they did not argue in the motion that no evidence exists to support the jury's findings on the issue of course and scope. The Contrerases neither moved for an instructed verdict nor moved for a judgment notwithstanding the verdict. At no point did they file a motion to disregard the jury's finding. Accordingly, we hold that the Contrerases have failed to preserve their legal sufficiency challenge. See id. The Contrerases' second issue is overruled.

Factual Sufficiency of the Evidence

In their third issue, the Contrerases claim there is factually insufficient evidence to support the jury's finding that Arturo's injuries occurred during the course and scope of his employment. A motion for new trial is a prerequisite to preserve a factual sufficiency of the evidence complaint. Tex. R. Civ. P. 324(b)(2), (3); Cecil, 804 S.W.2d at 510. Although the Contrerases filed a motion for new trial, they did not argue in the motion that there is factually insufficient evidence to support the jury's finding with respect to this issue. Therefore, the Contrerases failed to preserve their factual sufficiency challenge. See Tex. R. Civ. P. 324(b); Cecil, 804 S.W.2d at 510. The Contrerases' third issue is overruled.

Juror Disqualification

In their final issue, the Contrerases argue the trial court erred in denying their motion for new trial because one of the jurors, Juan Rodolfo Broquet, was statutorily disqualified from jury service. The decision whether to grant a motion for new trial is addressed to the trial court's discretion, and the court's ruling on such will not be disturbed on appeal absent a showing of an abuse of discretion. Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984). An abuse of discretion does not exist if the trial court bases its decision on conflicting evidence and some evidence reasonably supports the court's decision. Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978).

According to the Contrerases, Broquet was not a citizen of the county in which he served as a juror. See Tex. Gov't Code Ann. 62.102(2) (Vernon 1998) ("A person is disqualified to serve as a petit juror unless he . . . is a citizen of this state and of the county in which he is to serve as a juror."). Before voir dire, each potential juror completed a questionnaire distributed by the district clerk consisting of commonly asked voir dire questions. On his juror questionnaire, Broquet indicated that his county of residence was Duval County, Texas. Broquet listed his address as 206 W. 1st Street, San Diego, Texas. During voir dire, Broquet identified himself as a lifelong resident of Duval County. However, after the verdict was rendered, the Contrerases secured an affidavit from Broquet indicating:

I currently live, reside, and work in Bexar County, Texas, and have done so since before September 2002 . . . I work for National Tire and Battery. I used to work for the same company in Corpus Christi and at that time I lived in San Diego, Texas, which is in Duval County. National Tire and Battery transferred me to San Antonio, Texas. I moved to San Antonio, Texas in June of 2002, to be near my work.

Security well subsequently obtained its own affidavit from Broquet, stating:

I do not and have never considered San Antonio, Texas my legal residence as I am living in San Antonio only temporarily to be close to my work. I consider myself a resident and citizen of Duval County now and at the time I served as a juror during the Contreras trial. It has always been my intent to maintain Duval County as my permanent legal residence. At the time I served as a juror during the Contreras trial I considered Duval County my home and considered myself a resident and citizen of Duval County. My home at 206 W. 1st Street, San Diego, Texas, is my permanent home and I consider it my permanent residence. During the Contreras trial and currently I maintain the 206 W. 1st Street, San Diego, Texas, address on my current Texas Driver's License. Attached is a true and correct copy of the same. Before and after the Contreras trial I voted in Duval County, Texas. I have not registered to vote in Bexar County, Texas. I have not voted in Bexar County and I do not intend to vote in Bexar County. I have taken no steps to establish Bexar County, Texas, as my residence.

It is evident from these affidavits that the trial court was presented with conflicting evidence about whether Broquet was a citizen of Duval County, Texas. In light of the conflicting nature of the evidence on this issue, we cannot say the trial court abused its discretion in denying the Contrerases' motion for new trial. See Davis, 571 S.W.2d at 862. The Contrerases' fourth issue is therefore overruled.

Conclusion

In light of our resolution of the Contrerases' appellate issues, we need not reach the cross-issue raised in SWS's appellee's brief. We affirm the judgment of the trial court.

Catherine Stone, Justice

1. The Contreras Crew was required to use a company vehicle because no personal vehicles were permitted on the King Ranch.

2. The trial court relied on the definition of "course and scope" provided by the Texas Workers' Compensation Act, quoting it verbatim. See Tex. Lab. Code Ann. 401.011(12) (Vernon Supp. 2004).