Brenda Herbert, the Estate of Henry Bolton and Ruby Bolton v. Laura Urbina ( 2014 )

Opinion issued December 11, 2014.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-01062-CV
———————————
BRENDA HERBERT, THE ESTATE OF HENRY BOLTON,
AND RUBY BOLTON, Appellants
V.
LAURA URBINA, Appellee
On Appeal from the 80th District Court
Harris County, Texas
Trial Court Case No. 2012-27671
MEMORANDUM OPINION
Brenda Herbert, Ruby J. Bolton, and the Estate of Henry D. Bolton,
deceased (collectively, the Boltons), appeal the trial court’s judgment in favor of
Laura Urbina, the Boltons’ former employee, on her claim for breach of an oral
employment agreement, bringing legal and factual insufficiency challenges. We
hold that legally sufficient evidence supports the jury’s verdict and that the Boltons
waived their factual insufficiency challenge. We therefore affirm.
Background
In April 2010, the Boltons hired Urbina, an experienced certified nurse
assistant, to provide in-home nursing care for Mr. Bolton, who was bedridden.
They agreed to pay her $10 an hour to care for Mr. Bolton from four to five hours a
day and to provide her with room and board.
When she arrived, Urbina found the house dirty and disordered. In addition
to her nursing duties, the Boltons asked Urbina to perform various cleaning and
household chores. During the first two weeks, Urbina worked approximately
twelve to sixteen hours a day. When Urbina received her first paycheck after three
weeks, it compensated her for only five hours a day. She confronted Mrs. Bolton
about the discrepancy, and Mrs. Bolton agreed to pay her more.
The Boltons’ insurance company provided Patient Care Flow Sheet forms
for recording the hours that Urbina provided care for Mr. Bolton and itemizing the
nursing duties she performed. Mrs. Bolton asked Urbina to sign the blank forms
and told Urbina that she would complete them later. Each of the checks written
out to Urbina was in an amount that corresponded to an itemized form.
2
Urbina had been working for the Boltons for about four months when Mrs.
Bolton fell ill. By then, the Boltons were paying Urbina for eight-hour days.
Urbina assumed the additional responsibility of caring for Mrs. Bolton, helping her
get to the restroom and dress herself. Urbina was working seventeen- to eighteen-
hour days. The Boltons also asked her to take care of the yard and occasionally to
cook meals and take care of the dishes and laundry. She spoke with Mrs. Bolton
about paying her for the additional responsibilities, and Mrs. Bolton again agreed
to pay her more. The Boltons, however, did not fully compensate Urbina for the
hours she worked. Beginning in January 2011, Urbina began keeping her own
records of the hours she worked.
In 2011, Mrs. Bolton broke her hip and, as a result, needed specialized care
that Urbina was not qualified to provide. In August 2011, the Boltons’ daughter,
Brenda Herbert, terminated Urbina’s employment.
Urbina sued the Boltons, seeking unpaid wages for breach of an oral
employment contract. The Boltons counterclaimed, also suing for breach of an
oral employment contract.
The parties tried their claims to a jury. The charge agreed to by the parties
submitted a single liability question to the jury which, in its entirety, read: “Did
the Defendants fail to comply with the oral employment agreement of Urbina?”
The jury answered “yes,” and awarded Urbina $11,000 in compensatory damages.
3
The Boltons moved for judgment notwithstanding the verdict, contending
that the evidence did not support the jury’s verdict because the award exceeded the
total of the payments reflected in the Patient Care Flow Sheets and was
unsupported by other evidence. The trial court denied the motion and rendered
judgment on the jury’s verdict.
Discussion
I. Legal Sufficiency Challenge
A. Standard of review
The Boltons contend that, by signing the Patient Care Flow Sheet forms,
Urbina restricted her compensation to the amount shown on those sheets as a
matter of law, so that the evidence is legally insufficient to support the jury’s
$11,000 award. In reviewing a legal sufficiency challenge to the evidence, we
view the evidence in the light most favorable to the finding, crediting favorable
evidence if a reasonable fact finder could, and disregarding contrary evidence
unless a reasonable fact finder could not. City of Keller v. Wilson, 168 S.W.3d
802, 822, 827 (Tex. 2005). The appellant must demonstrate that there is no
evidence to support the finding when he attacks the legal sufficiency of a finding
on which he did not have the burden of proof. See Exxon Corp. v. Emerald Oil &
Gas Co., L.C., 348 S.W.3d 194, 215 (Tex. 2011). We may not sustain a legal
sufficiency or no-evidence point unless the record demonstrates that: (1) there is a
4
complete absence of a vital fact; (2) the court is barred by the rules of law or of
evidence from giving weight to the only evidence offered to prove a vital fact;
(3) the evidence to prove a vital fact is no more than a scintilla; or (4) the evidence
established conclusively the opposite of the vital fact. City of Keller, 168 S.W.3d
at 810. The fact finder is the sole judge of the witnesses’ credibility and the weight
to give their testimony. Id. at 819.
B. Analysis
The Patient Care Flow Sheet requires completion of sections entitled “Client
Name” and “Caregiver Name,” and it contains boxes to check for various
caretaking duties performed and their frequency. It requires the signatures of both
the client and the employee-caregiver with certifications accompanying each
signature. The employee “certif[ies] that the hours and days shown on this Patient
Care Flow Sheet Weekly Pay Documentation is the exact amount of hours and
days worked by [the employee] during the week indicated, and were properly
certified by the client.” The certification admonishes that “[a]ny person who
knowingly and with intent to injure, defraud, or deceive any insurance company
. . . is subject to criminal prosecution.” The Boltons contend that the forms signed
by Urbina constitute an unambiguous written agreement that cannot be varied with
other evidence.
5
Both sides pleaded breach of an oral employment agreement, however, and
neither objected to submission of that claim to the jury. We therefore address the
sufficiency of the evidence in light of the charge given to the jury. See Osterberg
v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (explaining that when charge is submitted
without objection, sufficiency of evidence is measured against charge given).
That evidence included more than the written care flow sheet forms.
Undisputed evidence shows that Urbina performed housekeeping duties in addition
to the caregiving duties she provided to Mr. Bolton. The flow sheets do not
address Urbina’s housekeeping duties. The dispute at trial centered on the number
of hours Urbina worked performing these housekeeping duties, for which the
Boltons owed Urbina payment. Urbina’s testimony and her handwritten records
support the jury’s award. The jury’s verdict in favor of Urbina reflects a credibility
determination that we may not disturb on appeal. See City of Keller, 168 S.W.3d at
819. We hold that legally sufficient evidence supports the jury’s findings.
II. Factual Sufficiency Challenge
The Boltons also contend that the evidence is factually insufficient to
support the verdict. The Boltons, however, failed to present a motion for new trial
challenging the factual sufficiency of the complained-of evidence. Their failure to
raise their factual sufficiency challenge in a motion for new trial waives their
6
complaint. See TEX. R. CIV. P. 324(b)(2); Cecil v. Smith, 804 S.W.2d 509, 512
(Tex. 1991).
Conclusion
We hold that legally sufficient evidence supports the jury’s verdict and that
the Boltons waived their factual sufficiency challenge. We therefore affirm the
judgment of the trial court.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
7