In re Emmett Jackson--Appeal from 185th District Court of Harris County

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State: Texas

Court: Texas Northern District Court

Docket No: 01-08-00930-CR

Case Date: 12/04/2008

Plaintiff: Harold Randall Pues

Defendant: Veterans of Foreign Wars Post No. 8246--Appeal from 260th District Court of Orange County

Preview:Affirmed and Memorandum Opinion filed August 27, 2009.

In The

Fourteenth Court of Appeals
____________ NO. 14-08-00333-CV ____________ HAROLD RANDALL PUES, Appellant V. VETERANS OF FOREIGN WARS POST 8246, Appellee

On Appeal from the 260th District Court Orange County, Texas Trial Court Cause No. D-060189-C

MEMORANDUM OPINION
Appellant Harold Randall Pues was injured while assisting in the felling of a tree on the property of appellee Veterans of Foreign Wars Post 8246 in Vidor. Following a jury verdict favorable to Pues, the trial court entered a judgment notwithstanding the verdict in favor of the VFW. On appeal, Pues contends the trial court erred in granting the JNOV because the evidence is legally sufficient to support the jury's findings in his favor. The VFW responds that the trial court did not err in granting the JNOV and raises six crosspoints. We affirm the trial court's judgment and so do not reach the VFW's cross-points.

I Although they were not VFW members, Pues and his friend Alfred "Rusty" Revia, Jr. had frequented the VFW post for years and occasionally volunteered to perform odd jobs for the VFW, including working at barbeques and fish fries, cutting grass, and doing plumbing work. On one occasion, a tree limb knocked a hole in a cook shack on the VFW's property, and Pues and Revia volunteered to cut down and remove the tree. Pues was injured when he was struck by a falling limb as he and Revia attempted to fell the tree. In April 2006, Pues sued the VFW, alleging negligence, negligent conduct of activity on the premises, and premises defect. The VFW answered and designated Revia as a responsible third party. The case proceeded to trial and a jury found that the VFW exercised or retained control of the tree felling, Pues and Revia were employees of the VFW in connection with the tree felling, and that the VFW, Pues, and Revia were each negligent. The jury

apportioned 50 percent of the negligence to the VFW, 25 percent to Pues, and 25 percent to Revia. The jury also awarded Pues damages totaling $158,413.22. On February 28, 2008, the trial court granted the VFW's motion for JNOV and ordered that Pues take nothing. The trial court's judgment recited that "[i]t appears to the court that there is insufficient evidence as a matter of law to support the verdict of the jury and that a directed verdict in favor of [the VFW] would have been proper and that judgment notwithstanding the verdict should be rendered in favor of [the VFW]." This appeal followed. II In two issues, Pues contends that the trial court erred in granting the JNOV in favor of the VFW and that the evidence is legally sufficient to support the jury's findings in Pues' favor. The VFW responds that the evidence is legally insufficient to show that the VFW controlled the tree felling or to show that an employer-employee relationship existed between the VFW and Pues and Revia. The VFW also contends that the evidence shows as a matter

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of law that Pues and Revia were independent contractors. Further, the VFW contends that the evidence is legally insufficient to sustain the jury's findings under alternative theories of recovery, including inherently dangerous activity, nondelegable duty, premises defect, and inexperience, and that the evidence is legally insufficient to show negligence or proximate cause. A A trial court may disregard a jury's verdict and render a judgment notwithstanding the verdict if no evidence supports one or more of the jury's findings or if a directed verdict would have been proper. Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003). When examining a legal-sufficiency challenge, we review the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We credit favorable evidence if reasonable jurors could and disregard contrary evidence unless reasonable jurors could not. Id. at 827. The evidence is legally sufficient if it would enable reasonable and fair-minded people to reach the verdict under review. Id. B Pues first contends that the evidence is legally sufficient to support the jury's answers to Questions 1, 4, and 5. Question 1 asked the jury: "Did the [VFW] exercise or retain some control over the manner in which the occurrence in question was performed, other than the right to order the work to start or stop or to inspect progress or receive reports?" Question 4 asked whether, on the occurrence in question, Pues was acting as an employee of the VFW. Question 5 asked the same of Revia. The jury answered all three questions affirmatively. Pues asserts that the evidence shows that both Pues and Revia testified that Nelson Reeves of the VFW was supervising their work on the tree and telling them how to place the rope and how to cut the tree, and that the method and procedure to cut the tree was 3

specifically discussed and agreed to by Pues and Revia. To support the jury's findings that Pues and Revia were employees, Pues asserts that this evidence shows that the VFW had the right to and did control the details of the work. Additionally, Pues argues that, to prove that he was an employee, he was not required to show the existence of a contract for hire or that the VFW paid him for his work. Instead, Pues contends, there need only be an express or implied understanding that the employer has the right to direct the details of the work and not merely the result to be accomplished, citing Doe v. Boys Club of Greater Dallas, Inc., 868 S.W.2d 942, 949

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