Jacobs-Cathey Company v. Thomas Carroll Cockrum--Appeal from 170th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-96-051-CV

JACOBS-CATHEY COMPANY,

Appellant

v.

THOMAS CARROLL COCKRUM,

Appellee

From the 170th District Court

McLennan County, Texas

Trial Court # 94-589-4

DISSENTING OPINION

ON

MOTION FOR REHEARING

Jacobs-Cathey's motion for rehearing asserts in eleven points that this court erred in affirming the judgment of the trial court. I believe the motion for rehearing should be granted and the judgment reversed and rendered in its favor. Because the majority does not, I dissent to the order overruling the motion.

At the bottom line, my quarrel with the majority on the legal-sufficiency question is about what inferences may be drawn from the circumstantial evidence. On the factual-sufficiency question, we disagree primarily about how much deference we are required to give to the determinations made by the factfinder. As I stated in my original dissent, I believe that Cockrum's right to recover rests on whether the evidence is legally sufficient to show that no air conditioning belts were present on the school's roof when Jacobs-Cathey's employees began working there in April 1992.

The majority opinion constructs a ladder to reach the conclusion that the evidence is sufficient, while admitting that the evidence of who left the offending belt is circumstantial. That ladder consists of three rungs, each of which is unsupported by the record. The first rung asserts that "the jury may have considered [Zipperlen's] memory skills sufficiently sound that he would have recalled seeing air conditioner belts on the roof if, indeed, there had been any." As I pointed out in my original dissent, Zipperlen testified directly that he did not recall whether any belts were present or not. Why, then, is it more likely that Zipperlen would have recalled seeing belts than not seeing belts? The majority's assertion is unsupported by the record and is simply speculation about what the jury may have inferred.

The second rung asserts: The jury could have determined that the type of debris indicated in the photographs is the type of debris that was located on the roof in April 1992 after Zipperlen and Howard serviced the air conditioning units. Thus, the jury could have concluded that Zipperlen would have noticed the air conditioning belts on the roof at the time had there actually been any and that, as a necessary consequence, any belts after April 1992 were left by either Zipperlen or Howard. The photographs admittedly show belts on the roof after Cockrum fell. Therefore, if the jury concluded, as the majority asserts, that the debris was of the same type as when Zipperlen arrived in April 1992, it would be more reasonable to conclude that belts were already present than to conclude, in the face of Zipperlen s testimony that he did not recall, that Zipperlen would have recalled belts had they been there. Again, the inference ascribed to the jury is unsupported by the record.

The third rung asserts "the record reveals that Wooley was Waco ISD's roofing supervisor and therefore probably visited the roofs of Waco ISD building more frequently than Dulock," who was the "maintenance supervisor in charge of heating and air conditioning for Waco ISD." (Emphasis added). Nothing in the record supports that supposition. In fact, it is just as reasonable to assume that Dulock visited the roofs of Waco ISD buildings more frequently that Wooley because air conditioners typically need repairs more often than roofs. Here, the majority's inference that the jury would have given more weight to Wooley's testimony is unsupported by the record.

Thus, it becomes apparent that the majority's determination, i.e., the jury could have concluded that "the belt over which Cockrum tripped was left by a Jacobs-Cathey employee," can only be reached by relying on assumptions about what the jury could have inferred that have no support in the record. Because the circumstantial evidence is equally consistent with either of two assumptions, i.e., that Jacobs-Cathey s employees left the belt or that another work-party left the belt, the no-evidence point should be sustained. Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996).

I find interesting the majority's reliance on Lance v. USAA Ins. Co., 934 S.W.2d 427, 428 (Tex. App. Waco 1996, no writ). Lance was a "zero-damages" case where the majority approved the jury's finding of no damages. There, the majority decided that deference to a jury s findings allowed the jury to disregard uncontroverted evidence; whereas here, the majority defers to the jury s affirmative finding of facts that have no support in the evidence. In my view, we cannot defer to the jury when there is no evidence of the fact that the jury found or when the evidence conclusively establishes the fact that the jury failed to find. In other words, in analyzing no-evidence points and conclusive-evidence points, deference is not part of the equation.

I would grant the motion for rehearing, sustain the no-evidence point, reverse the judgment, and render judgment in favor of Jacobs-Cathey

Looking at factual sufficiency, the majority states: "We ascertained our job in undertaking a factual sufficiency review as only to review the record to determine if the evidence is factually sufficient to support the jury's findings." Jacobs-Cathey v. Cockrum, No. 10-96-051-CV, slip op. at 13 (Tex. App. Waco, June 4, 1997). That states the general proposition, but says little about the question of how we accomplish that task. The majority's view is that we do not "pass on the weight" of the evidence. Id.

An unbroken line of decisions by the Texas Supreme Court requires the courts of appeals to consider and weigh all the evidence when conducting a factual-sufficiency review. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex. 1980); In re King s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1952). With that in mind, I looked for recent opinions (other than mandamus questions where we defer to the trial judge's findings of fact because of the abuse-of-discretion standard) which mention deference to fact findings. I found relatively few. // IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 442 (Tex. 1997) (findings of fact, even though useful, not required because appellate courts not obligated to give them the same level of deference as to facts found by factfinder); Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 30-31 (Tex. 1994) (level of appellate deference to awards of punitive damages not altered, but courts should carefully scrutinize them to see if supported by the evidence) (meaningful trial court review of awards of punitive damages especially important because of the deference which courts of appeal must give to jury verdicts); Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 649 (Tex. 1988) (reversals of jury verdicts far less than the number of cases in which power to reverse is mentioned, partly due to court s deference to jury verdicts in general). Thus, I question just how much deference is required when our constitutional duty to review the factual sufficiency of evidence to support a jury finding is invoked. Assuming that we should give some deference to the factfinder, how do we balance deference to a judge s or jury's findings with our duty to consider and weigh the evidence a question of long standing still unanswered by the Supreme Court.

As recently as 1986, the Court noted in Pool:

Chief Justice Calvert opined that a court of appeals "should analyze the evidence on both sides of the issue, at least in a brief and general way, and point out why the finding is regarded as being contrary to the great weight and preponderance of the evidence." Calvert, supra, at 368. Justice Garwood enumerated a few of the many instances when a verdict should be set aside and a new trial granted. He cited examples of "such as to shock the conscience," "so as to be clearly unjust," "to clearly indicate bias." He suggested that in arriving at an insufficiency holding, the court of appeals "must, up to a point, follow the same kind of mental process that a jury does." Garwood, supra, at 811. Recognizing the inexact standard set for the courts of appeals, Justice Garwood allowed that "[m]aybe some day we will develop more rules to aid trial courts and courts of civil appeals in dealing with this troublesome question." Id. at 812.

Pool, 715 S.W.2d at 635.

My view is that adherence to an elusive obligation to defer to the factfinder, as was espoused in Lance and repeated in the majority's opinion in this case, without "considering and weighing" the evidence, results in no factual-sufficiency review. Perhaps the guidance that Justice Garwood hoped for on this "troublesome question" will be forthcoming.

Finally, I note that the legal- and factual-sufficiency questions were blurred in the majority's opinion on original submission when it combined its discussion of whether the evidence legally and factually supports the jury s finding of breach of duty by Jacobs-Cathey. Jacobs-Cathey, slip op. at 8-14. The opinion makes no distinction between the two standards of review, simply concluding that the verdict is legally and factually supported by the evidence. Id. at 14.

Because it drew unreasonable inferences not supported by the record, placed too much reliance on a perceived duty of this court to defer to the jury, and did not address the question of factual sufficiency apart from the question of legal sufficiency, I conclude that the original majority opinion failed to properly apply the factual-sufficiency standard to the facts of this case. Even assuming that the evidence is legally sufficient to support the verdict, a review by properly considering and weighing all of the evidence would result in a finding that the evidence is factually insufficient to support the verdict. Thus, I would in the alternative grant the motion for rehearing, reverse the judgment, and remand the cause for another trial.

BILL VANCE

Justice

Opinion delivered and filed July 16, 1997

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