King Fisher Marine Service, L.P. v. Jose H. Tamez ( 2014 )

IN THE SUPREME COURT OF TEXAS
444444444444
NO . 13-0103
444444444444
KING FISHER MARINE SERVICE, L.P., PETITIONER,
v.
JOSE H. TAMEZ, RESPONDENT
4444444444444444444444444444444444444444444444444444
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE THIRTEENTH DISTRICT OF TEXAS
4444444444444444444444444444444444444444444444444444
Argued December 5, 2013
JUSTICE BROWN delivered the opinion of the Court, in which JUSTICE JOHNSON , JUSTICE
WILLETT , JUSTICE LEHRMANN , and JUSTICE BOYD joined.
JUSTICE GUZMAN filed a dissenting opinion, in which CHIEF JUSTICE HECHT, JUSTICE GREEN ,
and JUSTICE DEVINE joined.
In this case we consider whether a trial court must entertain charge objections up to the time
it charges the jury or whether it acts within its discretion in setting an earlier deadline. We also
consider whether sufficient evidence supported the jury’s finding that an injured seaman was
following a specific order and was therefore excepted from contributory negligence. The court of
appeals concluded the trial court acted within its discretion in refusing to hear a last-minute charge
objection and that sufficient evidence supported the jury’s specific-order finding. For the reasons
below, we affirm.
I
Jose Tamez was working as a welder on board the Leonard M. Fisher, a dredging vessel
operated by King Fisher Marine Service, L.P., when he injured his left arm helping two crew
members lift a large and heavy socket-wrench assembly. The assembly, which consists of a long
shaft inserted into the edge of a large socket, is used to loosen and tighten a nut that secures a
“cutterhead” to the ship. The cutterhead extends from the ship to the floor of the channel that is being
dredged. The crew must periodically unattach and reattach the cutterhead to accommodate extensions
that enable it to reach the desired depth. Attaching or unattaching the cutterhead requires the
assistance of several crew members. Following the attachment, a crew member welds a cap over the
nut to hold it in place.
The crew was in the process of reattaching the cutterhead when Tamez was injured lifting
the socket while two crewmates, Captain Jorge Cordova and Deck Captain Ricardo Delgado, lifted
the shaft. The three men were the only witnesses to the incident. Delgado testified he remembered
essentially nothing, leaving Tamez and Cordova to offer their respective accounts of what happened.
Tamez testified he had finished cutting a cable near the cutterhead and was carrying his
welding torch when he walked around the cutterhead to find Cordova and Delgado “trying to remove
the socket and the shaft with their hands” while the assembly “was almost falling.” Tamez testified
Cordova “demanded, yelled out for [him] to help them fast because it was going to fall.” Tamez
further recalled, “I had the torch on the right arm, so I used my left arm to help them.” He did not
stop to set down his torch, Tamez said, “[b]ecause [Cordova] yelled. It was to do it fast.”
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Cordova agreed he ordered Tamez to assist, but testified he and Delgado had not attempted
to lift the assembly before he called on Tamez to help, at which time the three men lifted the
assembly together only after Tamez was “in position.” Cordova testified he and Delgado would not
have attempted to lift the socket without Tamez because they needed Tamez, the welder, to weld the
cap over the nut once it was in place. Cordova further testified that he twice asked Tamez if he was
ready to lift and that Tamez was not holding his welding torch at the time. Lifting the assembly with
one hand, Cordova testified, would be impossible.
Tamez successfully removed the socket but later reported he was hurt in the process. He sued
King Fisher under the Jones Act, 46 U.S.C. § 31014, arguing he was injured working under a
specific order to lift equipment that the crew should have lifted with mechanical assistance or with
additional manpower. Under maritime law, a “specific order” is one in which the seaman is ordered
to do a specific task in a specific manner or is ordered to do a task that can be accomplished in only
one way. Weeks Marine, Inc. v. Garza, 371 S.W.3d 157, 166–67 (Tex. 2012). When a seaman is
carrying out a specific order, his damages may not be reduced by a finding of contributory
negligence. Id. at 166. King Fisher denied Tamez was working under a specific order and argued he
was contributorily negligent. The jury found Tamez was working under a specific order to lift the
socket and awarded him $420,000, but also found him 50% at fault for his injuries. Based on the
jury’s specific-order finding, however, the trial court did not reduce Tamez’s award.
On appeal, King Fisher argued the evidence was insufficient to support the jury’s specific-
order finding and that the trial court abused its discretion in refusing the specific-order definition that
King Fisher proposed adding to the jury charge. The court of appeals concluded both that there was
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sufficient evidence to support the specific-order finding and that the trial court did not abuse its
discretion in refusing the proposed definition as untimely. Before this Court, King Fisher reurges its
argument that the trial court was bound to entertain its last-minute charge objection. In addition,
King Fisher argues the court of appeals erred in its sufficiency review by relying on Ninth Circuit
precedent to expand the narrow specific-orders exception beyond the boundaries this Court
previously recognized in Garza.
II
A
We first address whether the trial court erred in refusing to consider for inclusion in the jury
charge King Fisher’s proposed definition of a specific order. King Fisher’s request came the morning
after the formal charge conference and minutes before the trial court would read the charge to the
jury. Upon receiving King Fisher’s objection to the charge and proposed definition, the trial court
asked Tamez’s counsel whether he had seen the offer. Counsel acknowledged seeing it but
maintained he had not had enough time to verify that it was “the proper instruction in substantially
correct form.” The trial court then refused the instruction “mainly because it’s not timely,” adding
that “we needed to have all this stuff done and in by yesterday.”
When King Fisher’s counsel protested that he was entitled under the Rules of Civil Procedure
to lodge his objection, the trial court responded: “And that may be the rules, but my ruling to you
was, everything needed to be in beforehand, and yesterday was the charge conference, and therefore,
it needed to be done before the charge conference, not, you know, two minutes before I’m bringing
in the jury.” Indeed, as King Fisher’s counsel finished making his objections to the charge at the
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formal charge conference the previous afternoon, the trial court warned the parties: “[T]omorrow
when we come in, I’m not going to mess with this any further . . . . [W]hen you leave, you better be
very happy with it, or unhappy, but satisfied that we got everything in that reflects my ruling.” The
parties apparently understood the seriousness of this warning; when King Fisher’s counsel offered
the specific-order definition the next morning, he conceded his understanding “from the discussions
yesterday that all [King Fisher’s new] objections will be overruled.” He added: “I apologize for not
making [the objections] yesterday, and I appreciate the Court’s ruling on them before the charge is
read.”
Nevertheless, King Fisher argues the trial court abused its discretion in refusing its proposed
definition as untimely. According to King Fisher, both Rule 272 of the Rules of Civil Procedure and
our precedent in State Department of Highways & Public Transportation v. Payne, 838 S.W.2d 235
(Tex. 1992), provide that King Fisher’s objection was timely and preserved error on appeal. The
court of appeals disagreed, concluding that the trial court afforded King Fisher ample opportunity
to present its proposed instruction and that refusing the instruction on the morning the charge was
to be read was not an abuse of discretion. King Fisher Marine Serv., L.P. v. Tamez, No. 13-10-
00425-CV, 2012 WL 1964567, at *6 (Tex. App.—Corpus Christi May 31, 2012, pet. granted) (mem.
op.).
B
We review de novo any question regarding the proper interpretation of Rule 272. See Long
v. Castle Tex. Prod. Ltd. P’ship, 426 S.W.3d 73, 78 (Tex. 2014). A trial court’s rejection of a
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proposed definition is reviewed for abuse of discretion. In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000).
King Fisher argues that Rule 272 of the Rules of Civil Procedure mandates that a trial court
accept objections to the charge up to the moment it is read to the jury and that trial courts have no
discretion to alter this deadline. The trial court’s only discretion in the matter, King Fisher maintains,
is its latitude in determining when it will charge the jury, which in turn sets a concomitant deadline
for objections to the charge.
Tamez, on the other hand, argues the trial court’s discretion allowed it to set an earlier
deadline for charge objections and that Rule 272 demands only that the trial court afford the parties
a “reasonable time” to “examine and present objections” to the charge. The trial court gave King
Fisher sufficient time to review the charge and make objections, Tamez argues, and the trial court
acted within its discretion in refusing to consider King Fisher’s objection, made just minutes before
the trial court was to read the charge.
C
Trial courts have “inherent power to control the disposition of cases ‘with economy of time
and effort for itself, for counsel, and for litigants.’” Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240
(Tex. 2001) (per curiam) (quoting Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)). Accordingly,
the “‘discretion vested in the trial court over the conduct of a trial is great.’” Id. (quoting Schroeder
v. Brandon, 172 S.W.2d 488, 491 (Tex. 1943)). This discretion empowers a trial court to fulfill “a
duty to schedule its cases in such a manner as to expeditiously dispose of them.” Clanton v. Clark,
639 S.W.2d 929, 930 (Tex. 1982).
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Nevertheless, King Fisher argues Rule 272 prohibits trial courts from establishing a deadline
for charge objections earlier than the reading of the charge to the jury. Rule 272 provides in pertinent
part:
The charge shall be in writing, signed by the court, and filed with the clerk, and shall
be a part of the record of the cause. It shall be submitted to the respective parties or
their attorneys for their inspection, and a reasonable time given them in which to
examine and present objections thereto outside the presence of the jury, which
objections shall in every instance be presented to the court in writing, or be dictated
to the court reporter in the presence of the court and opposing counsel, before the
charge is read to the jury. All objections not so presented shall be considered as
waived.
Tex. R. Civ. P. 272.
The rule provides that a trial court may not consider any objections made after the charge is
read to the jury. But it does not follow that a trial court is obligated to consider every objection made
before the charge is read to the jury. Instead, the plain language of the rule sets an outside limit for
charge objections. Tamez correctly argues that objecting before the charge is read to the jury is a
necessary, but not always sufficient, step toward having the trial court review the merits of the
objection.
Rule 272 mandates trial courts to afford the parties a “reasonable time” to inspect the charge
and present objections outside the presence of the jury. Nothing in the rule prohibits a trial court
from setting a deadline for charge objections that may expire before it charges the jury as long as the
deadline affords the parties a “reasonable time” to inspect and object to the charge. Rule 272’s
reliance on reasonableness invites, rather than restricts, trial-court discretion. Accordingly, while the
rule strictly prohibits objections after the charge is read, it affords trial courts latitude in addressing
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objections made before. And it is not surprising that many trial courts would prefer to avoid the
confusion and scheduling difficulties that would arise if objections were allowed up to the moment
the court plans to charge the jury.
D
Those courts of appeals which have encountered charge-objection deadlines all have one
thing in common—none has questioned trial courts’ authority to set such a deadline. Rather, in each
case the inquiry focused on the reasonableness of the time allowed to review and object to the
charge, which is exactly what the plain language of Rule 272 contemplates.
The earliest case in which a charge-objection deadline was at issue is Federal Underwriters
Exchange v. Tubbe, 180 S.W.2d 473 (Tex. Civ. App.—Amarillo 1944), rev’d on other grounds, 143
Tex. 266 (1944). There, the trial court handed a portion of its charge to the parties during trial and
the remainder after the close of evidence. Tubbe, 180 S.W.2d at 477. The parties were given an hour
and a half to review and object to the charge. Id. One of the parties objected to the short period of
time. Id. The court of appeals ultimately did not evaluate the reasonableness of the time allotted
because it concluded the appellant failed to show any harm. Id. But the court of appeals never
questioned the trial court’s authority to set a deadline. Rather, citing Rule 272, the court of appeals
noted that “[t]he time allowed attorneys to examine the court’s charge and prepare exceptions and
objections thereto is discretionary with the trial judge, who should fix a reasonable time under all
the circumstances.” Id.
The Amarillo court of appeals again encountered a charge-objection deadline in Hargrove
v. Texas Employers’ Insurance Association, 332 S.W.2d 121 (Tex. Civ. App.—Amarillo 1959, no
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writ). After the close of evidence, the trial court presented the parties with the court’s charge, and
the parties lodged objections. Hargrove, 332 S.W.2d at 122–23. The trial court made a revised
charge available for the parties the same day and told them further objections were due by 9:00 the
following morning. Id. The plaintiff missed the deadline and did not object until the trial court
convened the following morning and began charging the jury. Id. at 123. The court of appeals held
the plaintiff waived complaint by failing to object before the trial court began charging the jury. Id.
But it is noteworthy that no one argued the trial court’s deadline was unreasonable. Instead, the court
of appeals articulated the same understanding of Rule 272 as it had offered in Tubbe. Id.
In Austin State Hospital v. Kitchen, the trial court held an “initial charge conference,”
received objections, and then recessed for lunch. 903 S.W.2d 83, 89–90 (Tex. App.—Austin 1995,
no writ). One of the parties returned from lunch with an additional objection, which the trial court
overruled because it “came too late or should be overruled on the merits.” Id. at 90. After concluding
that the objecting party had preserved error under Payne, the court of appeals reviewed the trial
court’s decision for abuse of discretion. Id. at 93. The court of appeals concluded that because the
trial court did not set a deadline in advance and did not rely solely on a “procedural technicality” in
overruling the objection, the ruling was made on the merits of the objection. Id. Importantly, the
court of appeals never held or suggested the trial court did not have authority to set a deadline for
charge objections, only that it had not actually done so.
In Deaton v. United Mobile Networks, L.P., the trial court conducted a nearly four-hour
charge conference, during which the court combined portions of the parties’ proposed charges and
announced the court’s charge would be submitted the following day. See 926 S.W.2d 756, 765 (Tex.
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App.—Texarkana 1996), aff’d in part, rev’d in part on other grounds, 939 S.W.2d 146 (Tex. 1997).
Counsel requested additional time to review the charge, and the trial court, after bemoaning
counsel’s “interminable and repetitious complaints,” offered the parties an additional hour for
review. Id. Claiming an additional hour was not enough, the Deatons’ counsel declined the offer, and
the trial court concluded the charge conference. Id. The court of appeals rejected any suggestion the
trial court lacked authority to set a charge-objection deadline, noting instead that “[c]ounsel has
directed this [c]ourt to no authority suggesting that the trial court erred by setting an ending time for
objections.” Id. Instead, the court of appeals properly limited its inquiry to whether the time allowed
was reasonable and concluded it was.
Just a year later, the Texarkana court of appeals encountered another charge-objection
deadline in Bekins Moving & Storage Co. v. Williams, 947 S.W.2d 568 (Tex. App.—Texarkana
1997, no writ). There, the court of appeals concluded the trial court did not abuse its discretion by
giving counsel only thirty minutes to examine a charge before taking objections when most of the
charge “had been in counsel’s possession for four days and which had only been changed to
consolidate some damage issues.” Id. at 575–76. Once again, the court of appeals evaluated the
reasonableness of the time given the parties but never questioned the trial court’s authority to set a
deadline in the first place.
Although none of these cases is on all fours with this case or binding upon this Court, they
demonstrate that while several courts of appeals have encountered charge-objection deadlines, none
has balked at the trial court’s authority to impose them. Instead, each has simply reviewed whether
the trial court gave the parties what Rule 272 requires—a “reasonable time” to review and object to
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the charge. Rule 272’s plain language has led to the courts of appeals’ consistent analysis in this
regard. We likewise conclude Rule 272 plainly grants trial courts authority to set a deadline for
charge objections that falls before the reading of the charge to the jury. When such a deadline is set,
we ask only whether a reasonable time was allowed to review and object to the charge.
E
Although King Fisher did not meet the trial court’s charge-objection deadline, it did preserve
error under Rule 272’s requirement to object before the jury was charged and under the standard we
set forward in Payne. 838 S.W.2d at 241. There is no question the trial court was aware of King
Fisher’s complaint before the jury was charged and ruled on it. Error was preserved, and the only
remaining issue is whether the trial court’s charge-objection deadline resulted in an unreasonable
amount of time for the parties to review and object to the charge.
We find the time afforded was reasonable. King Fisher knew well in advance of trial that the
specific-orders exception would be an issue in the jury charge. Tamez filed with the trial court
eighteen days before trial a proposed jury charge including a specific-order question, putting King
Fisher on notice that Tamez would push to have the question included. King Fisher responded with
a “trial memorandum” six days later, arguing that the specific-orders exception did not apply.
Four days into trial the trial court held what the parties describe in their briefing as an
informal charge conference. At that time, Tamez’s counsel told the court the specific-order question
was a significant point of disagreement between the parties. The trial court urged the parties to work
together that evening to resolve charge issues in anticipation of a formal charge conference the next
day.
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At 9:05 the next morning, Tamez filed an amended proposed jury charge. After evidence
closed shortly after noon, Tamez’s counsel informed the trial court his new proposed charge
contained modifications the parties agreed to the previous evening. The trial court apparently had
not yet seen the new proposed charge and instructed the parties to return that afternoon for the formal
charge conference. The record suggests the parties likely spent some of the intervening time working
on the charge with the trial court off the record. At any rate, it is clear the trial court added the
specific-order question to the charge before the formal charge conference began.
At the formal charge conference, King Fisher lodged three objections to the specific-order
question, but never proposed a definition. The formal charge conference lasted nearly an hour, and
near its conclusion the trial court admonished the parties that all objections should be made before
the conference ended and that the trial court would not revisit the charge the next morning.
Importantly, the trial court never set a deadline for the formal charge conference to end, nor did it
limit the time the parties had to review its charge. It simply required the parties to make all their
objections at the formal charge conference, and it did not end the formal charge conference until the
parties had exhausted their objections. The parties were not under pressure to lodge objections by
a time certain, nor was the formal charge conference adjourned under protest from either party.
Because the specific-orders exception was an issue between the parties in this case well
before trial, the trial court’s inclusion of a specific-order question in its charge could not have taken
King Fisher by surprise. Even if the parties received the court’s charge immediately before the
formal charge conference, King Fisher does not argue anything in the charge departed from the trial
court’s prior rulings or that the trial court did anything more than capture what the parties had
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already discussed and knew was coming. The parties knew the first order of business when the trial
court reconvened the next morning was to charge the jury. Yet King Fisher did not offer its proposed
definition until just before the trial court was to bring in the jury. Under these facts, the trial court
provided the parties a “reasonable time” to review and object to the charge, and acted within its
discretion in refusing as untimely King Fisher’s proposed definition.
Though we hold the trial court did not abuse its discretion, we do not necessarily endorse its
decision. Trial courts can and should encourage adherence to their deadlines. Keeping a trial on
schedule benefits everyone involved—trial courts benefit from the ability to manage the demands
presented by their overall docket, jurors benefit from a managed, efficient trial that minimizes what
already is an imposition on their daily lives, and parties and their counsel benefit from the equity that
follows clear expectations. Nevertheless, these interests should be balanced with a trial judge’s
ultimate duty to provide the jury with a legally correct charge.
This Court has previously observed that “[o]ne of the main purposes of Rule 272 is to enable
the trial court to submit a proper charge to the jury and to have the prior benefit of counsel’s
objections so as to correct any errors that might otherwise occur.” Mo. Pac. R.R. Co. v. Cross, 501
S.W.2d 868, 873 (Tex. 1973). We also have recognized that the preparation of the charge comes “at
that very difficult point of the trial between the close of the evidence and summation” and often
forces counsel to navigate “complex, intricate, sometimes contradictory, unpredictable rules, just
when counsel is contemplating the last words he or she will say to the jury.” Payne, 838 S.W.2d at
240. Even the most skilled and experienced counsel will sometimes miss valid charge objections
during informal and formal charge conferences. An objection that may seem obvious to an appellate
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court perusing a cold record may occur to battle-weary trial counsel only when the fog of war has
lifted after a long day in the courtroom, or simply after a decent night’s sleep. Trial courts should
therefore make every effort to entertain on the merits a charge objection brought in good faith after
conclusion of the formal charge conference but before the charge is read to the jury.
In this case, there is no evidence King Fisher raised its last-minute objection in bad faith or
that its objection was groundless or intended only to delay the proceedings. The trial court
presumably could have entertained the objection at issue with minimal delay to the day’s
proceedings. In refusing to do so, the trial court potentially risked placing its own schedule above
the integrity of the charge.
But we decline to fashion a rule constraining all trial courts based on the facts of this case.
A mandate for trial courts to entertain objections lodged at any time up until the charge is read to the
jury is at odds with the discretion built into the plain language of Rule 272. Moreover, it is not sound
policy. The rule King Fisher proposes essentially would put attorneys in charge of the trial in the
time between the formal charge conference and the reading of the charge to the jury. Under such a
paradigm, counsel may not take the formal charge conference seriously or prepare studiously
knowing the court is powerless to refuse objections made after the charge conference is over.
Moreover, such a rule would cripple the trial court’s ability to prevent intentional or unnecessary
delay caused by objections brought after the formal charge conference.
These concerns are not merely speculative. In Deaton, the trial court complained of counsel’s
“interminable and repetitious” objections after laboring through a nearly four-hour charge
conference. 926 S.W.2d at 765. When counsel requested additional time, the trial court offered
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another hour. Id. Counsel declined, saying it was inadequate. Id. So the trial court ended the charge
conference, only to have counsel appear the next morning with an additional forty pages of
objections and proposed additional charges. Id. Under the rule King Fisher advocates, a trial court
facing a similar situation must consider each objection on the merits, regardless of the frivolity of
the objections or any delay they add to the trial.
To summarize, we hold that Rule 272 affords trial courts the discretion to set a deadline for
charge objections that precedes the reading of the charge to the jury as long as a reasonable amount
of time is afforded for counsel to examine and object to the charge. We agree with the court of
appeals that the trial court provided a reasonable amount of time in this case. Accordingly, we affirm
the court of appeals’ determination that the trial court did not abuse its discretion in refusing King
Fisher’s last-minute objection and proposed definition for the specific-order question.
III
Finally, we consider King Fisher’s argument that insufficient evidence supported the jury’s
finding that Tamez was following a specific order when he was injured. Ordinarily, any damages
recoverable by an injured seaman are reduced on a percentage basis by a jury’s finding that the
seaman’s negligence contributed to his damages. Johnson v. Cenac Towing, Inc., 544 F.3d 296, 302
(5th Cir. 2008). However, under admiralty law, recovery may not be reduced by contributory
negligence if the seaman was responding to a specific order. Garza, 371 S.W.3d at 166.
King Fisher argues that the court of appeals relied upon a Ninth Circuit expansion of the
specific-orders exception to conclude that sufficient evidence supported the jury’s finding. In
Simeonoff v. Hiner, the Ninth Circuit enlarged the specific-orders exception to cover a seaman who
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responds to a general order in a perceived emergency situation, reasoning that “[a] seaman cannot
safely pause to assess the dangers of responding to an urgent, general call for help from a superior.”
249 F.3d 883, 890–91 (9th Cir. 2001).
However, the court of appeals’ holding does not rest on the Simeonoff expansion. The court
of appeals cites Simeonoff only once for the foundational proposition that “[i]n maritime law,
comparative negligence bars an injured party from recovering damages sustained as a result of his
own fault.” King Fisher, 2012 WL 1964567, at *3 (citing Simeonoff, 249 F.3d at 889–90). The court
of appeals never mentions the expansion Simeonoff created, nor did it apply Simeonoff to the facts
of this case.
This Court expressly declined to consider the Simeonoff expansion under the facts presented
in Garza. 371 S.W.3d at 167 n.13. And because there is sufficient evidence to support the jury’s
specific-order finding in this case even without help from the Simeonoff expansion, we will not
consider it here. Accordingly, we limit our sufficiency review to the standard we articulated in
Garza—the specific-orders exception “applies only when the seaman is ordered to do a specific task
in a specific manner or is ordered to do a task that can be accomplished in only one way.” Garza,
371 S.W.3d at 167. A seaman receives a specific order when his “only options are either to complete
the task or disobey the order.” Id. In conducting a sufficiency review in Jones Act cases, we are
required to set aside our traditional legal-sufficiency standard in favor of one that vests the jury “with
complete discretion on factual issues.” Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex.
1998) (citing Rogers v. Mo. Pac. R.R. Co., 352 U.S. 500, 506–07 (1957)). Once an appellate court
determines that some evidence about which reasonable minds could differ supports the verdict, the
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appellate court’s review is complete. Id. (citing Tex. & Pac. Ry. Co. v. Roberts, 481 S.W.2d 798, 800
(Tex. 1972)).
In Garza, a supervisor instructed Garza to retrieve some tools. Garza, 371 S.W.3d at 167.
Garza testified there was only one route to the tools and, while walking there, the supervisor released
a steel friction bar that hit Garza in the head from behind. Id. We held the jury could have concluded
that the only way Garza could have avoided danger was to disobey his supervisor. Id. at 167.
King Fisher focuses on Tamez’s testimony that, while still holding his welding torch, he
lifted the socket using only his left arm. Because setting down the torch and lifting with both hands
was an option available to Tamez, King Fisher argues he was not following a specific order. But
Tamez’s was not the only account of the accident. Cordova, one of the three witnesses to the
accident, denied he and Delgado were struggling with the assembly before Tamez was ordered to
help. Rather, Cordova testified all three men were in position and lifted the assembly together after
Cordova twice asked Tamez whether he was ready to lift. Tamez was not holding his welding torch
and lifted with both hands, Cordova testified. Cordova further testified there was “no way” Tamez
would be able to lift the assembly with one hand.
Under Cordova’s version of the events, he gave Tamez an order to lift the assembly that
could be performed in only one way—lifting with both hands—which Cordova testified Tamez did.
Based on Cordova’s testimony, the jury could have determined that the only two options before
Tamez was to lift the assembly with both hands (as doing so with one hand would be impossible)
or disobey the order. Cordova’s testimony furnishes “some evidence about which reasonable minds
17
could differ.” See Ellis, 971 S.W.2d at 406. Accordingly, sufficient evidence supported the jury’s
specific-order finding.
***
Having concluded the trial court did not abuse its discretion in refusing to consider King
Fisher’s requested specific-order definition and that there was sufficient evidence to support the
jury’s specific-order finding, we reject both of King Fisher’s arguments and affirm the judgment of
the court of appeals.
_______________________________
Jeffrey V. Brown
Justice
OPINION DELIVERED: August 29, 2014
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