Redi-Carpet Sales, Inc. v. Barbara Hearron

NUMBER 13-99-515-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI ____________________________________________________________________ REDI-CARPET SALES, INC., Appellant, v. BARBARA HEARRON, Appellee. ____________________________________________________________________ On appeal from the 55th District Court of Harris County, Texas. ____________________________________________________________________ O P I N I O N Before Justices Dorsey, Yañez, and Seerden(1) Opinion by Justice Yañez Redi-Carpet Sales, Inc. (Redi-Carpet), appellant, brings this appeal to challenge a judgment rendered in favor of Barbara Hearron. We affirm. Background Barbara Hearron was the resident manager of the Alta Vista Apartments in Harris County, Texas. Redi-Carpet sold new carpeting to the Alta Vista Apartments and arranged to have the carpet installed. Hearron was not satisfied with the installation and contacted Redi-Carpet, where she spoke with the Vice President of Sales and Operations, Douglas Odle. Redi-Carpet agreed to correct the deficiencies in the installation and arranged for crews of installers to work on the apartments. On October 13, 1996, Hearron was walking past an apartment in which an installer was working, when a piece of carpet padding was thrown out the door and onto the sidewalk. Hearron fell, either as a result of being hit by the padding, or because it landed directly in front of her, tripping her. The installer working on that apartment was Leodegario Melendez. Hearron brought suit because of injuries she suffered as a result of the accident. Initially, Hearron sued Redi-Carpet, Inc., but over the course of prosecuting the suit, added Redi-Carpet Sales, Inc.(2), and Leodegario Melendez a/k/a Antolin Gonzalez. The case was tried to a jury, which found that Melendez's negligence caused Hearron's injuries. The jury also found that Melendez was an employee of Redi-Carpet and was acting in the course and scope of his employment at the time of the accident. The jury found that Hearron was entitled to $185,100 in damages. The trial court rendered judgment that Hearron recover $185,100 from Redi-Carpet.(3) Redi-Carpet now challenges the judgment of the trial court. Redi-Carpet argues that: (1) the trial court erred in denying Redi-Carpet's motion for a directed verdict on the issue of whether Melendez was an independent contractor or an employee of Redi-Carpet; (2) the trial court erred in submitting a question to the jury as to whether Melendez was an employee of Redi-Carpet or an independent contractor; and (3) the evidence was factually insufficient to support the jury's finding that Melendez was an employee of Redi-Carpet acting in the course and scope of his employment at the time Hearron was injured. The Directed Verdict A directed or instructed verdict is proper when: (1) a specifically indicated defect in the opponent's pleadings makes it insufficient to support a judgment; (2) the evidence conclusively proves a fact that establishes a party's right to judgment as a matter of law; or (3) the evidence offered on a cause of action is insufficient to raise an issue of fact. City of Alamo v. Casas, 960 S.W.2d 240, 248 (Tex. App.--Corpus Christi 1997, pet. denied); Nelson v. American Nat'l Bank of Gonzales, 921 S.W.2d 411, 414 (Tex. App.--Corpus Christi 1996, no writ). We review denials of motions for instructed verdict by a legal sufficiency, or "no evidence," standard of review. Casas, 960 S.W.2d at 248; City of Alamo v. Montes, 904 S.W.2d 727, 732 (Tex. App.--Corpus Christi 1995, writ dism'd, 934 S.W.2d 85 (Tex. 1996). When reviewing a legal sufficiency challenge, we consider all the evidence in the light most favorable to the prevailing party, indulging every reasonable inference in that party's favor. Associated Indem. Corp. v. CAT Contracting, 964 S.W.2d 276, 286 (Tex. 1998); Norwest Mortgage, Inc. v. Salinas, 999 S.W.2d 846, 853 (Tex. App.--Corpus Christi 1999, pet. denied). A legal sufficiency challenge is sustained when the record discloses: (1) that there is a complete absence of evidence of a vital fact; (2) that the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) that the evidence offered to prove a vital fact is no more than a scintilla; or (4) that the evidence conclusively establishes the opposite of the vital fact. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997); Norwest Mortgage, 999 S.W.2d at 853. Redi-Carpet contends that Melendez was an independent contractor and there was no evidence that he was an employee of Redi-Carpet. Independent Contractor Status An independent contractor is any person who, "in the pursuit of an independent business, undertakes to do a specific piece of work for other persons, using his own means and methods, without submitting himself to their control in respect to all its details." Pitchfork Land & Cattle Co. v. King, 162 Tex. 331, 346 S.W.2d 598, 602-03 (1961); Bennack Flying Serv., Inc. v. Balboa, 997 S.W.2d 748, 751 (Tex. App.--Corpus Christi 1999, pet. dism'd w.o.j.); Alvarado v. Old Republic Ins. Co., 951 S.W.2d 254, 259 (Tex. App.--Corpus Christi 1997, no writ); Hoechst Celanese Corp. v. Compton, 899 S.W.2d 215, 220 (Tex. App.--Houston [14th Dist.] 1994, writ denied). Although many factors, such as benefits, or training, or paycheck deductions for social security and taxes, may contribute to the determination of whether a person is an employee or an independent contractor, the fundamental factor is the right of control. Bennack, 997 S.W.2d at 751 (citing Alvarado, 951 S.W.2d at 259). The standard tests for determining whether one is acting in the capacity of an independent contractor measure the amount of control that the employer exerts or has a right to exert over the details of the work. Newspapers, Inc. v. Love, 380 S.W.2d 582, 591 (Tex. 1964); Bennack, 997 S.W.2d at 751; Alvarado, 951 S.W.2d at 259; Compton, 899 S.W.2d at 220. Appellate courts generally analyze five factors in determining the amount of control retained by the employer: (1) the independent nature of the workman's business; (2) his obligation to furnish the necessary tools, supplies, and materials to perform the job; (3) his right to control the progress of the work except as to final results; (4) the time for which he is employed; and (5) whether he is paid by time or by job. Pitchfork Land & Cattle Co., 346 S.W.2d at 603; Bennack, 997 S.W.2d at 751; Alvarado, 951 S.W.2d at 259. An "employer" must control not merely the end sought to be accomplished, but also the means and details of its accomplishment. Thompson v. Travelers Indem. Co., 789 S.W.2d 277, 278 (Tex. 1990); Bennack, 997 S.W.2d at 751; Alvarado, 951 S.W.2d at 259. Examples of the type of control normally exercised by an employer include when and where to begin and stop work, the regularity of hours, the amount of time spent on particular aspects of the work, the tools and appliances used to perform the work, and the physical method or manner of accomplishing the end result. Thompson, 789 S.W.2d at 278; Bennack, 997 S.W.2d at 751; Alvarado, 951 S.W.2d at 259. If there is a written contract, we look to see if there is evidence that the employer explicitly retained control over more than the end result of the independent contractor's performance. Bennack, 997 S.W.2d at 751;, 951 S.W.2d at 261; Farrell v. Greater Houston Transp. Co., 908 S.W.2d 1, 3 (Tex. App.--Houston [1st Dist.] 1995, writ denied) (employer retained no express right of control in contract and exercised very little control); Ross v. Texas One Partnership, 796 S.W.2d 206, 210 (Tex. App.--Dallas 1990),writ denied per curiam, 806 S.W.2d 222 (1991) (absence of right of control in contract proves relationship is not employer/employee unless hiring party exercised control in a manner inconsistent with the contractual provisions). Where a dispute exists about the controlling facts and more than one reasonable conclusion can be inferred, the question of whether one is an "employee" or "independent contractor" is a question of fact. Bennack, 997 S.W.2d at 751-52; see Alvarado, 951 S.W.2d at 264 (the question of whether one is an "employee" or an "independent contractor" is a question of law when only one reasonable conclusion can be inferred from the uncontroverted controlling facts); see also Crow, 893 S.W.2d at 78 (same). The Evidence Adduced at Trial In the course of the trial, both parties called several witnesses and introduced documentary evidence. In order to discuss the trial court's denial of Redi-Carpet's motion for directed verdict, we will first summarize the evidence before the trial court on the issue of Melendez's status as an employee or independent contractor.(4) Gregory Waleke's Testimony Gregory Waleke, the chief executive officer of Redi-Carpet testified that Redi-Carpet hired DCR Floor Covering to install flooring sold by Redi-Carpet, and DCR in turn hired subcontractors to do the actual installation work. Installers who wanted work would go to the Redi-Carpet plant in the morning, where DCR was housed, and they would be assigned work by Robert Lidiak. Waleke stated that Lidiak is not an employee of Redi-Carpet, but is rather an employee of DCR. Installers would go to DCR each day to determine what job they would do that day. According to Waleke, Redi-Carpet had about twenty employees, all of whom received benefits including health care, vacation time, and retirement. Redi-Carpet employs no installers, never provided benefits for Melendez, and does not provide tools to installers. Waleke stated that Douglas Odle was a manager at Redi-Carpet, but was never an officer in the company. Waleke signed a response to a complaint filed by Hearron with the Better Business Bureau concerning the original installation, in which he stated "we have replaced all pad [sic]." Waleke explained that the response did not mean that Redi-Carpet employees went out and replaced the pads, but that Redi-Carpet had arranged for the pads to be replaced. Douglas Odle Both parties read into evidence portions of the deposition of Douglas Odle, the vice president of sales and operations at Redi-Carpet. According to the deposition excerpts, Odle was contacted by Hearron because there were problems with the work originally done on the carpet installation at the Alta Vista Apartments. Odle investigated, making specific notes about what work needed to be done in each unit to correct the problems with the original work. Odle also arranged for the work to be done on a schedule to accommodate the residents of the apartments. Installers sent to the apartments had to work according to this schedule. Odle went out to the apartments whenever Hearron had a question or complaint about the work. Odle handled complaints involving nails having been left out by installers, and replaced a vacuum cleaner damaged by an installer. Odle stated that had he seen a crew acting rudely he would have had them leave the site and would have arranged for another crew to be sent to the work site. According to his deposition testimony, Odle did not generally deal with the crews directly, but dealt with them through Robert Lidiak. Odle also stated that it was Lidiak's job "to run the crews and talk to them about anything that goes on at the job site or, you know with the job." Odle also stated that the installers would get their work orders from Redi-Carpet, then go to the job site and install the material. Odle stated that the installers did not have supervisors because all the installers were independent contractors. According to Odle's deposition testimony, DCR had no employees; Lidiak, whom Odle describes as being "in charge of the crews" was an employee of Redi-Carpet. Odle stated that DCR was only a device by which Redi-Carpet processed checks to the installers. Odle never informed Hearron that the work on the apartments would be done by independent contractors. Odle stated that usually when a customer had a problem with an installer, Lidiak would speak to the installer involved, and that Lidiak kept track of incidents. An installer who was the subject of frequent complaints would not be assigned to any further jobs. Robert Lidiak Excerpts from Robert Lidiak's deposition were read into evidence, although he also testified in person. Lidiak testified, in his deposition, that DCR was housed in Redi-Carpet's building and did not have its own telephone number, but rather used Redi-Carpet's telephone number. According to the deposition testimony, although he works for DCR, Lidiak did not have a job description for his position with DCR. Redi-Carpet called Lidiak to the stand during the presentation of their defense. Lidiak stated that the installers were independent contractors and not employees of Redi-Carpet or DCR. Melendez was paid on a "per-yard" basis for his work at the Alta Vista Apartments. The installers provide their own vehicles, tools and helpers. DCR does not pay for insurance for the installers' vehicles, nor does DCR withhold taxes from the money it pays to the installers. Occasionally Lidiak would go to job sites to inspect the quality of the work being done. Lidiak testified that because he had not set DCR up as a company, he did not know if it was created solely to pay bills for Redi-Carpet. Barbara Hearron Hearron testified that when she first contacted Redi-Carpet about her dissatisfaction with the way carpet was being installed at the Alta Vista Apartments, she spoke with Doug Odle. Odle told Hearron that Redi-Carpet would correct the problems. Hearron stated that she had never heard of DCR before she began prosecuting her lawsuit. Hearron testified that she saw Odle directing the installers at the Alta Vista Apartments. She also stated that Odle would inspect the jobs as they were completed. The Contracts Along with the testimony, a number of exhibits were admitted in evidence. Two documents relevant to the relation of Melendez to Redi-Carpet were admitted. One of the documents is a contract between Melendez and DCR, offered by Redi-Carpet. The contract defines Melendez as a subcontractor and states that DCR "shall look to Subcontractor for results only, and will not have the right at any time to direct or supervise Subcontractor or any of his workmen, servants, or employees in the performance of the work as to the manner, means and method in which the work is performed." Melendez is required to provide his own tools and equipment and is allowed to contract with other companies. Redi-Carpet did not offer the original of the contract; instead, a copy of the contract was admitted in evidence. The copy is of poor quality, with some words illegible. Although it is dated June 8, the year is unreadable. The second document is an agreement in which DCR Floor Covering, Inc. agrees to provide installation services to Redi-Carpet and to pay Redi-Carpet a monthly fee for office space and services related to office operations. The agreement is dated December 15, 1991. Application of the Standard of Review to the Evidence Considering the evidence in the light most favorable to Hearron and indulging every reasonable inference in her favor, we find that there was sufficient evidence to deny Redi-Carpet's motion for a directed verdict. There was testimony that DCR was not a separate entity, but was actually a part of Redi-Carpet. The testimony of Odle shows that Redi-Carpet maintained control over several aspects of the installation process. Hearron also testified that she saw Odle giving instructions to the installers. The contract would support the view that Melendez was an independent contractor as to DCR; however, it is impossible to determine when the contract was signed. It is possible the document was signed after the incident with Hearron occurred. There is some evidence that Redi-Carpet maintained sufficient control over Melendez to have a jury consider whether he was, in fact, an employee rather than an independent contractor. The trial court did not err in denying the motion for directed verdict. The Jury Questions Redi-Carpet argues that the trial court erred in overruling Redi-Carpet's objection to jury questions two and three. Redi-Carpet did not object to jury question number two; therefore, any error as to question number two is waived. Tex. R. App. P. 33.1. Question number three asks whether Melendez was acting as an employee of Redi-Carpet, on the occasion in question. Only issues raised by the evidence are to be submitted to the jury. Tex. R. Civ. P. 278. Whether a question is raised by the evidence is to be determined by the same legal sufficiency standard that applies to the determination of whether an instructed verdict should be given. Blonstein v. Blonstein, 831 S.W.2d 468, 471 (Tex. App.--Houston [14th Dist.]), writ denied per curiam, 848 S.W.2d 82 (Tex. 1992). As discussed above, the evidence that Melendez was Redi-Carpet's employee, rather than an independent contractor, was sufficient under the "no evidence" standard to support the denial of a directed verdict. Because the same standard is applied to determine if a question should have been submitted to the jury, it follows that the trial court did not err in overruling Redi-Carpet's objection to jury question three. Factual Sufficiency of the Evidence Redi-Carpet challenges the jury's findings that Melendez was an employee of Redi-Carpet and was acting in the course and scope of his employment at the time that Hearron was injured. Redi-Carpet argues that the findings are contrary to the great weight and preponderance of the evidence. This is a challenge to the factual sufficiency of the evidence supporting the jury finding. Id. at 473. When considering a factual sufficiency challenge to a jury's verdict, we consider and weigh all of the evidence. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998). A court of appeals can set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust. Id. at 407; Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). The court of appeals is not a fact finder, and may not pass upon the witnesses' credibility or substitute its judgment for that of the jury, even if the evidence would clearly support a different result. Maritime Overseas Corp., 971 S.W.2d at 407. The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony, and the appellate court should not act as a thirteenth juror in assessing the evidence and the credibility of the witnesses. Mohnke v. Greenwood, 915 S.W.2d 585, 589-90 (Tex. App.--Houston [14th Dist.] 1996, no writ). We do not find the jury's findings to be contrary to the great weight and preponderance of the evidence. The jury heard testimony by Odle and Hearron that indicated that Redi-Carpet exercised some level of control over Melendez in the course of his work at the Alta Vista Apartments. Although there was testimony that could support a finding that Melendez was an independent contractor, the jury, as sole judge of the credibility of the witnesses, was under no requirement to believe this testimony. Redi-Carpet argues that the contracts establish that Melendez was an independent contractor. The date of the contract between DCR and Melendez is not legible as to the year it was signed. None of the testimony relating to the contract indicates when it was signed. It is possible that it was signed after Hearron's injuries were incurred. The contract, which is written entirely in English, states that Melendez, who does not speak English, had the contract explained to him by Antolin Gonzalez. Lidiak, who also signed the contract, testified that Antolin Gonzalez is an alias used by Melendez. The jury may have chosen to assign little weight to a contract bearing an unclear date, that was signed by a person who did not speak English, who signed using an alias, as having explained the contract to himself. Moreover, the contract purports to be between DCR and Melendez; it does not address Melendez's relationship to Redi-Carpet. Redi-Carpet argues that it had no duty to control Melendez, because Melendez was not an employee of Redi-Carpet. The jury found that Melendez was an employee of Redi-Carpet and was acting in the course and scope of his employment. We have found the evidence sufficient to support this finding. Generally, an employer is vicariously liable for torts committed by its employees in the course and scope of their employment. GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 617-18 (Tex. 1999). Conclusion The evidence before the trial court was legally sufficient to support the trial court's denial of Redi-Carpet's motion for a directed verdict. Because there was some evidence that Melendez was a Redi-Carpet employee, the trial court did not err by submitting to the jury the question concerning Melendez's status as an employee or independent contractor. The jury's findings that Melendez was an employee of Redi-Carpet and was acting in the course and scope of his employment when Hearron was injured were not contrary to the overwhelming weight of the evidence so as to render the verdict clearly wrong and unjust. The judgment of the trial court is AFFIRMED. LINDA REYNA YAÑEZ Justice Do not publish. Tex. R. App. P. 47.3. Opinion delivered and filed this the 29th day of March, 2001. 1. Retired Chief Justice Robert Seerden assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to TEX.GOV'T CODE ANN.§ 74.003 (Vernon 1998). 2. The record does not explain the relationship of Redi-Carpet, Inc. and Redi-Carpet Sales, Inc. 3. Although Melendez filed a pro se answer to Hearron's petition, he did not participate in the trial and is not mentioned in the judgment. 4. Redi-Carpet does not raise any issues pertaining to Hearron's injuries or the damages awarded for those injuries, therefore, we will not summarize the evidence that relates to her injuries and the damages.