Paul Turner v. Precision Surgical, LLC

Opinion issued October 17, 2008

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-07-01113-CV

____________

PAUL TURNER, Appellant

V.

PRECISION SURGICAL, L.L.C., Appellee

On Appeal from the 280th District Court

Harris County, Texas

Trial Court Cause No. 2006-51426

O P I N I O N

Appellant, Paul Turner, appeals from a take-nothing judgment, rendered

upon a jury verdict, on his retaliatory-discharge and Sabine Pilot

claims against

appellee, Precision Surgical, L.L.C. (“Precision”). The trial court submitted the

jury questions on Turner’s claims in the disjunctive. We determine whether the

trial court erred in doing so and, alternatively, whether any possible error was

harmful. We affirm.

Background

Starting approximately in August 2002, Turner was employed as a sales

representative for Precision. By letter dated January 30, 2006, Turner was

discharged from his employment.

Turner alleged and produced evidence that in July 2005, approximately six

months before he was terminated, he was injured on the job from a slip-and-fall

accident, which broke two ribs in his lower back. Turner testified that Precision

asked him not to file for workers’ compensation and instead indicated that he

should file a claim under the company’s health-insurance plan, which excluded

claims that workers’ compensation covered. For Turner to receive coverage under

the company’s health-insurance policy, he would have had to misstate the facts of

his injury. Although Turner did not file a claim under the company’s health-insurance plan at that time, he did not expressly reject Precision’s instruction to do

so, and he did not file for workers’ compensation benefits then, either. Rather, he

decided to “tough it out.” When he reinjured his back in November of 2005, he

again discussed filing for workers’ compensation benefits with Precision, but,

according to his testimony, was again discouraged from filing, and did not then do

so, either. It was not until January 2006, after he had injured his back a third time,

that Turner finally applied for workers’ compensation benefits. It was very soon

after he had filed for workers’ compensation benefits that Precision discharged

Turner.

Turner contended that Precision had terminated him for refusing to engage

in the illegal activity of insurance fraud (by falsely reporting the facts of his injury

to receive coverage under Precision’s health-insurance plan), or, alternatively, in

retaliation for his having filed a workers’ compensation claim in January 2006. In

contrast, Precision presented evidence that Turner had been terminated, not as a

result of his injury, but, inter alia , due to his pattern of unreliability, dishonesty,

harming the reputation of Precision, and insubordination. Precision denied

suggesting that Turner do anything illegal, intimating that he would face trouble if

he filed a workers’ compensation claim, and firing him for these things.

The jury trial began in November 2007. At the conclusion of the three-day

trial, the trial court gave the following charge:

Question One : Was Paul Turner discharged for the sole reason that he

refused to perform an illegal act?

As used in this question, an illegal act means

insurance fraud. A person commits insurance fraud if

they [sic] intentionally submit false information knowing

it to be false to an insurance company in support of a

claim. Answer ‘yes’ or ‘no.’

If you answer ‘no’ to question one, then answer

question two. Otherwise, do not answer question two.

Question Two : Did Precision Surgical, LLC, discharge Paul Turner

because he filed a workers’ compensation claim in good faith?

. . . [T]here may be more than one cause for an

employment decision. An employer does not discharge

an employee for filing a workers’ compensation claim in

good faith. [sic] If the employer would have discharged

the employee when he did even if the employee had not

filed a workers’ compensation claim. Answer ‘yes’ or

‘no.’

(emphasis added).

Turner objected to the conditional nature of the instruction (italicized above)

given for the second question. The trial court overruled Turner’s objection:

Turner: Plaintiff objects to Question 2 on the basis that it is

predicated upon [a] no response for Question 1. Plaintiffs

pled the cause of action in the alternative, and both of

them—the plaintiff feels that both—both questions

should be submitted at the same time for consideration

without one requiring a “no” answer.

Court: So that you get a—

Turner: So that the plaintiff can—

Court: —charge that we can’t—I mean, a verdict that we can’t

use because the answers are in conflict if they say “yes”

to both?

Turner: Your Honor, it is the plaintiff’s position that election of

remedies would then be appropriate.

Court: Okay. That’s overruled.

The jury returned a negative answer on both causes of action, and the trial

court rendered a take-nothing judgment.

Propriety of the Trial Court’s Jury Instruction

In his sole issue, Turner argues that the instruction preceding Question Two

was improper because the trial court conditioned a response to the second question

on a negative response to the first, presenting his claims disjunctively and thus

allegedly preventing him from properly presenting both of his claims, which he

contends were alternative (but not mutually exclusive) theories of recovery.

A. The Standard of Review

An abuse-of-discretion standard governs challenges to error in the jury

charge. Tex. Dep’t of Human Servs. v. E.B. , 802 S.W.2d 647, 649 (Tex. 1990);

Scott Bader, Inc. v. Sandstone Prods., Inc. , 248 S.W.3d 802, 819 (Tex.

App.—Houston [1st Dist.] 2008, no pet.). A trial court abuses its discretion when

its actions are arbitrary, unreasonable, and without reference to any guiding rules

or principles. Goode v. Shoukfeh , 943 S.W.2d 441, 446 (Tex. 1997).

B. The Law

1. Submission of Jury Questions Generally

Ordinarily, a trial court has broad discretion in submitting jury questions and

instructions. Mobil Chem. Co. v. Bell , 517 S.W.2d 245, 256 (Tex. 1974); Roy v.

Howard-Glendale Funeral Home , 820 S.W.2d 844, 846 (Tex. App.—Houston [1st

Dist.] 1991, writ denied). In fact, trial courts have considerably more discretion in

submitting instructions and definitions than in submitting questions. See Harris v.

Harris , 765 S.W.2d 798, 801 (Tex. App.—Houston [14th Dist.] 1989, writ denied).

Nonetheless, a jury charge must fairly place the disputed issues before the jury.

Blonstein v. Blonstein , 831 S.W.2d 468, 471 (Tex. App.—Houston [14th Dist.]

1992), writ denied , 848 S.W.2d 82 (Tex. 1992). Additionally, a party is entitled to

an affirmative submission of all of its theories of recovery that have support in the

pleadings and evidence. See Tex. R. Civ. P. 278 (providing that it is mandatory for

trial court to submit questions raised by pleadings and evidence); Exxon Corp. v.

Perez , 842 S.W.2d 629, 631 (Tex. 1992).

2. Conditional Submission

A jury question is conditionally submitted when the jury is instructed to

answer the question contingent upon its answer to some other question, whether

the predicate answer be in the affirmative or in the negative. See Roy W.

McDonald & Elaine A. Grafton Carlson, Jury Trial: Charge , in 4 Texas Civil

Practice § 22:30[a] (West Group, 2nd ed.. 2001) [hereinafter “McDonald &

Carlson”]; 71 Tex. Jur. 3d. Trial & Alternative Dispute Resolution § 281 (2002).

Commentators have noted certain advantages of conditional submissions:

The judicious employment of conditions has many advantages. It

may simplify the charge, clarify the jury’s task, avoid findings on

immaterial questions, prevent the risk of comment on the weight of

the evidence, or forestall conflicting findings.

McDonald & Carlson § 22:30[a]. Nonetheless, because it is error for a trial court

to refuse to submit a question when there is some evidence to support its

submission, an improper conditional submission that “deprives a party of the

affirmative submission of an issue raised by the pleadings and evidence . . .

constitutes reversible error.” Varme v. Gordon , 881 S.W.2d 877, 881 (Tex.

App.—Houston [14th Dist.] 1994, writ denied). For example, it is improper to

condition a question submitting one cause of action upon an affirmative answer to

a question submitting another cause of action when the elements of two causes of

action are different and each constitutes a separate, independent theory of recovery.

See id.

3.Disjunctive Submission

Disjunctive submission of jury questions is governed by Texas Rule of Civil

Procedure 277, which provides, in part:

The court may submit a question disjunctively when it is apparent

from the evidence that one or the other of the conditions or facts

inquired about necessarily exists.

Tex R. Civ. P. 277 . “The disjunctive submission provision contained in Rule 277

was added to the jury charge rules in 1940 as an exception to separate and distinct

submission.” See William V. Dorsaneo III , Revision & Recodification of the Texas

Rules of Civil Procedure Concerning the Jury Charge , 41 S. Tex. L. Rev. 675 , 714

(Summer 2000) [hereinafter “Dorsaneo, Revision & Recodification ”]; see also

Tex. R. Civ. P. 277, 3 Tex. B. J. 566 (1940, amended 1941) (allowing use of

disjunctive submission of two or more inconsistent issues in one question as one of

very limited exceptions to rule that otherwise required separately and distinctly

submitted special issues). “Accordingly, disjunctive submission is simply one type

of broad-form submission.” Dorsaneo, Revision & Recodification at 714.

A disjunctive submission has been described as “an ‘either/or’ question

posed in a manner that necessarily prevents the two factual alternatives inquired

about from being found to exist concurrently.” R. Mike Borland, Comment,

Disjunctive Submission of Inferrential Rebuttal Issues , 33 Baylor L. Rev. 147 ,

148 (Winter 1981) [hereinafter “Borland, Disjunctive Submission ”]. Accordingly,

rule 277 allows the trial court to submit, disjunctively, the existence of two

mutually exclusive propositions when conflicting answers are possible.

See Lake

LBJ Mun. Util. Dist. v. Coulson , 692 S.W.2d 897, 908 (Tex. App.—Austin 1985),

rev’d on other grounds , 734 S.W.2d 649 (Tex. 1987); Warren v. Denison , 563

S.W.2d 299 , 304–05 (Tex. Civ. App.—Amarillo 1978, no writ) ; see also Mustang

Pipeline Co. v. Driver Pipeline Co. , 134 S.W.3d 195, 200 (Tex. 2004) (suggesting

disjunctive jury question that allowed jury to determine which of two parties

committed first material breach of contract); Select Ins. Co. v. Boucher , 561

S.W.2d 474, 477 (Tex. 1978) (indicating that submission of disjunctive jury issues

is appropriate when two alternative grounds of recovery are developed through

pleadings and submitted issues) .

Certain commentators have opined that “[d]isjunctive submissions . . .

should be used sparingly and with great caution” because they

run the danger of either misplacing the burden of proof (when one of

two options must be shown by a preponderance of the evidence and

the other need not be) or of unduly limiting the jury’s choices (when

the jury in fact has more than two choices— e.g. , the plaintiff was

negligent, the defendant was negligent, or the negligence of neither

party was shown by a preponderance of the evidence).

The Honorable Joe Brown, Jack Hebdon, & C.L. Mike Schmidt, Personal Injury ,

in 5 Texas Practice Guide § 13:112 (West Group, 2nd ed., 2008); see Borland,

Disjunctive Submission at 148 (stating that disjunctive submission “is appropriate

only when one or the other of the conditions or facts must exist; its use would be

inappropriate where there is the possibility of an alternative finding not presented

in the issue.”) (emphasis in original).

The current text of rule 277 contemplates the disjunctive submission of

issues in one jury question, but an early advisory opinion indicates that issues may

be submitted disjunctively in separate questions, with one being conditioned, or

predicated, on a negative answer to the other. Compare Tex R. Civ. P. 277 (“ The

court may submit a question disjunctively when it is apparent from the evidence

that one or the other of the conditions or facts inquired about necessarily exists.”)

(emphasis added) with Subcomm. on Interpretation of R. of Civ. P., State Bar of

Tex., Op., 8 Tex. B. J. 281, 281–82 (1945)

and ASEP USA, Inc. v. Cole , 199

S.W.3d 369, 378 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (concluding that

trial court did not err in submitting to jury “apparently contradictory theories of

breach of contract and promissory estoppel,” in case in which charge instructed

jury to answer promissory-estoppel question only if it had already answered “no”

to prior breach-of-contract question).

C. Discussion

Here, the questions were submitted separately, the second predicated on a

particular answer to the first. Question Two was thus a conditional submission.

Additionally, because Question Two was predicated on a negative answer to

Question One—allowing the jury to answer one or the other of the claims

affirmatively, but not both—the conditional submission of question two operated,

in its effect, as a disjunctive submission of Turner’s claims.

See Subcomm. on

Interpretation of R. of Civ. P., State Bar of Tex., Op., 8 Tex. B. J. 281–82 (1945).

In his sole challenge on appeal, Turner argues that the trial court erred in

charging the jury because the conditional submission of Question Two, predicated

on a negative answer to question one, prevented him from properly presenting all

of his theories of recovery. Specifically, Turner contends that, by conditioning a

response to the second question upon a negative response to the first, the jury could

not consider (and potentially answer “yes” to) both causes of action

simultaneously, which it should have been permitted to do.

1. The Instruction Was not Erroneous

Turner’s wrongful-termination claim is based on Sabine Pilot Service, Inc. v.

Hauck , in which the Texas Supreme Court, creating a narrow exception to at-will

employment, declared that terminating an employee solely for his refusal to

perform an illegal act violates public policy. 687 S.W.2d 733, 735 (Tex. 1985).

Under Sabine Pilot , “it is the plaintiff’s burden to prove by a preponderance of the

evidence that his discharge was for no reason other than his refusal to perform an

illegal act.” Id. (emphasis added). Turner contends that the illegal act that he

refused to perform was insurance fraud, which he argues his making a claim under

Precision’s health-insurance plan would have entailed because he would have had

to lie about the circumstances of his injury. See Tex. Pen. Code Ann.

§ 35.02(a)(1)(A)–(B), (2) (Vernon 2008) (“A person commits an offense if, with

intent to defraud or deceive an insurer, the person, in support of a claim for

payment under an insurance policy: (1) prepares or causes to be prepared a

statement that: (A) the person knows contains false or misleading material

information; and (B) is presented to an insurer; or (2) presents or causes to be

presented to an insurer a statement that the person knows contains false or

misleading material information.”).

Turner’s retaliatory-discharge claim is based on Texas Labor Code section

451.001, which provides that “[a] person may not discharge . . . an employee

because the employee has: (1) filed a workers’ compensation claim in good faith

. . . .” Tex. Lab. Code Ann. § 451.001(1) (Vernon 2006). “[T]o prove a

‘retaliatory discharge’ claim, the employee must show that the employer’s action

would not have occurred when it did had the employee’s protected conduct—filing

a workers’ compensation claim—not occurred.” Haggar Clothing Co. v.

Hernandez , 164 S.W.3d 386, 388 (Tex. 2006). That is, although “[t]he employee

need not show he was fired solely because of filing the workers’ compensation

claim . . . , he must show that, ‘but for’ the filing of the claim , the discharge would

not have occurred when it did.” Green v. Lowe’s Home Ctrs., Inc. , 199 S.W.3d

514, 518 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (citations omitted,

emphasis added).

Turner argues:

At first glance, these two separate prohibitions on termination

would appear to be mutually exclusive since they both [sic] exclude

other possible reasons for termination. However, in this case they are

one [and] the same. By filing for workers’ compensation, Mr. Turner

refused to commit insurance fraud. There is evidence in the record

supporting both theories of liability.

. . .

This testimony and evidence establishes facts supporting the

elements of both Sabine Pilot and retaliatory discharge. What is

unique about the facts supporting the causes of action in this case is

that they are one [and] the same. Mr. Turner was fired for [filing for]

workers’ compensation and was fired about 60 hours after he did so.

By filing for workers’ compensation he was refusing to commit

insurance fraud (an illegal act) and was fired about 60 hours after he

refused. In short, by filing for workers’ compensation he was refusing

to commit an illegal act.

(emphasis added, citation omitted).

The problem with Turner’s argument is that it focuses on how he conveyed

his refusal to do the illegal act, rather than on what the illegal act that he refused to

do was or the fact of the refusal itself. The key is that the illegal act that he refused

to commit was lying to the insurer, i.e ., insurance fraud. Sabine Pilot thus requires

that Turner’s firing have been solely for his refusal to perform that illegal act. In

contrast, his retaliatory-discharge claim required that Turner show that, because he

filed a workers’ compensation claim in good faith , he was fired. See Tex. Lab.

Code Ann. § 451.001(1); Green , 199 S.W.3d at 518 . If he was fired for the sole

reason that he refused to lie to Precision’s insurer, then he necessarily was not fired

because he made a good-faith claim for workers’ compensation benefits;

conversely, if he was fired because he made a good-faith claim for workers’

compensation benefits, then he could not have been fired for the sole reason that he

refused to lie to Precision’s insurer. This state of mutual exclusivity exists

regardless of whether Turner expressed his refusal to commit insurance fraud

implicitly, by the filing of workers’ compensation benefits, or expressly, by telling

Precision that he refused to lie. Because the two claims are mutually exclusive on

a legal basis under the facts of this case, the trial court had the discretion to submit

the two claims to the jury disjunctively (although it did so in two questions, the

second being conditioned on a negative answer to the first), to avoid possible

confusion or potentially conflicting answers. See Coulson , 692 S.W.2d at 908

(indicating that trial court may submit, disjunctively, existence of two mutually

exclusive propositions when conflicting answers are possible ); cf. Guthrie v. Tifco

Indus. , 941 F.2d 374, 379 (5th Cir. 1991) (noting that claim for termination based

on age discrimination is “mutually exclusive” with claim for wrongful discharge

under Sabine Pilot ).

For these reasons, we hold that the trial court did not abuse its discretion in

submitting the two questions as it did.

2. Alternatively, Any Error Would Have Been Harmless

Alternatively, even if the trial court had erred by submitting the questions as

it did, we hold that any such error would have been harmless.

Error in the charge is harmful, and thus reversible, only if it caused or was

reasonably calculated to cause, and probably did cause, the rendition of an

improper judgment or if it prevented the appellant from properly presenting the

case on appeal. Tex. R. App. P. 44.1; E.B. , 802 S.W.2d at 649 ; In re D.R. , 177

S.W.3d 574, 581, 584 (Tex. App.—Houston [1st Dist.] 2005, pet. denied)

(applying rule 44.1 to determination of harm in context of conditional submission

of jury question). Because it is error for a trial court to refuse to submit a question

when there is some evidence to support its submission, our sister court has

explained the harm standard this way—albeit in a case not involving a disjunctive

submission: “If [an improper] conditional submission deprives a party of the

affirmative submission of an issue raised by the pleadings and evidence, such

conditional submission also constitutes reversible error.” Varme , 881 S.W.2d at

881 .

There were three possible outcomes that could have resulted, in the abstract,

from the trial court’s conditional, disjunctive submission of Question Two:

1.The jury could have answered “No” to Question One and “Yes”

to Question Two, finding liability only for Turner’s retaliatory-discharge cause of action;

2.The jury could have answered “No” to Question One and “No”

to Question Two, offering Turner no relief whatsoever; or

3.The jury could have answered “Yes” to Question One (finding

liability for Turner’s Sabine Pilot cause of action) and, thus, it

would not have been permitted to answer Question Two.

In the abstract, the first two outcomes would have allowed the jury to consider both

theories of recovery. Again in the abstract, either the first or third outcome would

have given Turner actual relief on one cause of action, but not on both. The only

outcome not permitted by the conditionally worded charge was a “Yes” answer to

both questions.

The second outcome is what actually occurred. At trial, the jury considered

both questions and answered both in the negative. On appeal, Turner’s contention

is that the jury should have been allowed to consider both questions so that it

would have had the opportunity to answer “Yes” to the first question and “Yes” to

the second (the only combination of answers not allowed by the charge as given).

This argument presents only theoretical, not actual, harm. The jury did consider

both questions: it considered them both—as its negative answer to the first

question allowed it to do—and then rejected them both. The instruction thus did

not in any way prevent the jury from considering both of Turner’s claims.

We hold that, because the jury considered both theories of recovery and

rejected each, any possible error in the challenged instruction would not have

caused the rendition of an improper judgment or have prevented Turner from

properly presenting his case on appeal. See Tex. R. App. P. 44.1. Put another way,

the conditional submission of Question Two, even if it had been error, would not

have been reversible error because it would not have deprived Turner of the

affirmative submission of an issue (his claim for retaliatory discharge) raised by

the pleadings and the evidence. See Varme , 881 S.W.2d at 881 . Therefore, we

hold that even if the trial court had erred in submitting Turner’s claims

conditionally, any such error would have been harmless, requiring us to overrule

Turner’s sole issue on that independent basis.

Conclusion

We affirm the judgment of the trial court.

Tim Taft

Justice

Panel consists of Justices Taft, Keyes, and Alcala.