Catarina Mendiola v. Dover Elevator Company--Appeal from 285th Judicial District Court of Bexar County

No. 04-00-00347-CV
Catarina MENDIOLA,
Appellant
v.
DOVER ELEVATOR COMPANY,
Appellee
From the 285th Judicial District Court, Bexar County, Texas
Trial Court No. 1998-CI-13695
Honorable Michael P. Peden, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Phil Hardberger, Chief Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: May 16, 2001

AFFIRMED

Catarina Mendiola appeals from a directed verdict granted by the trial court in favor of Dover Elevator Company (Dover). Mendiola claims the trial court abused its discretion in denying her motion for continuance and erred by granting an instructed verdict because there was sufficient evidence of Dover's negligence to go to the jury. We affirm.

Mendiola alleges she was injured when a freight elevator in which she was riding suddenly dropped several feet. She sued her employer, (1) the building owner, (2) and Dover. The trial court granted summary judgment to the employer and the building owner, leaving Dover as the only defendant. At trial, the only evidence Mendiola offered regarding Dover's negligence was Dover's admission that it was under contract to perform maintenance service or repair on the freight elevators at the building where Mendiola worked at the time of the accident. At the conclusion of Mendiola's evidence, the trial court granted Dover's motion for instructed verdict.

Motion for Continuance

Mendiola complains the trial court abused its discretion when it denied her motion for continuance. There is no written motion for continuance in the clerk's record, no reference to a motion for continuance in the reporter's record, and no record of an order ruling on a motion for continuance. Without a record, no error is preserved for our review and the point is waived. Tex. R. App. P. 33.1(a); Well Solutions, Inc. v. Stafford, 32 S.W.3d 313, 316 (Tex. App.-San Antonio 2000, no pet.). We overrule Mendiola's first issue.

Instructed Verdict

In reviewing an instructed verdict, we consider all of the evidence in the light most favorable to the party against whom the verdict was rendered, disregarding all contrary evidence and inferences. Edlund v. Bounds 842 S.W.2d 719, 723 (Tex. App.-Dallas 1992, writ denied). An instructed verdict is proper if the evidence is insufficient to raise a fact issue as to one or more essential elements of the claim or defense entitling the nonmovant to judgment. Id. at 723-24 (citing Fort Worth State Sch. v. Jones, 756 S.W.2d 445, 446 (Tex. App.-Fort Worth 1988, no writ)).

Mendiola contends she produced sufficient evidence under the doctrine of res ipsa loquitur to send the question of Dover's negligence to a jury. The doctrine of res ipsa loquitur allows a jury to infer a defendant's negligence when the unique facts surrounding an accident constitute sufficient circumstantial evidence to support such a fact finding. Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 250 (Tex. 1974). "To establish a claim by res ipsa loquitur, a plaintiff must prove (1) an accident of this character does not ordinarily occur in the absence of negligence and (2) the instrument which caused the accident was under the exclusive management and control of the defendant." Esco Oil & Gas, Inc. v. Sooner Pipe & Supply Corp., 962 S.W.2d 193, 195 (Tex. App.-Houston [1st Dist.] 1998, pet. denied) (citing Marathon Oil Co. v. Sterner, 632 S.W.2d 571, 573 (Tex. 1982)). "The first factor is necessary to support the inference of negligence and the second factor is necessary to support the inference that the defendant was the negligent party." Mobil Chem., 517 S.W.2d at 251. The doctrine can be applied to infer the liability of multiple defendants when they had joint control of the instrumentality causing the injury. Esco Oil, 962 S.W.2d at 195.

In this case, although Dover admitted it had a service contract on the elevator, Mendiola did not offer the contract in evidence. Without knowing the terms of the contract, we can only speculate what duties Dover undertook to perform and what control the building owner did or did not retain over the elevator. Cf. Bond v. Otis Elevator Co., 388 S.W.2d 681, 684-85 (Tex. 1965) (terms of the service contract conclusively established finding of joint control between building owner and elevator service company). Mendiola failed to present evidence raising an inference that Dover had either exclusive or joint control of the elevator. We overrule issue two.

Because we hold the trial court did not err in granting an instructed verdict in favor of Dover, we affirm the judgment.

PAUL W. GREEN,

JUSTICE

DO NOT PUBLISH

1. Professional Janitorial Services of San Antonio, Inc.

2. CMD Realty Investors, Inc.