AZAR NUT COMPANY, Appellant, v. Lorretta CAILLE, Appellee.
No. 08-85-00347-CV.
Court of Appeals of Texas, El Paso.
Nov. 26, 1986.
Rehearing Denied Dec. 23, 1986.
720 S.W.2d 685
After the hearing, and even after proof of military service had been introduced at the trial when appellant reurged his plea, the trial court acted within its discretion in its apparent determination that it was appropriate, under the facts of this case, to place the burden of proof on appellant, who had greater access to the evidence supporting his position. The court may well have denied the plea because appellant made no showing that his ability to defend was materially impaired by his military obligations. In light of this record, we find no abuse of discretion. Appellant‘s first point of error is overruled.
In his second point of error, appellant contends that the trial court abused its discretion when it increased the child support for the parties’ two children by $525 per month, from $375 to $900. We disagree.
Appellee presented evidence that her own income had decreased from $19,000, at the time of the prior modification in 1977, to a negative balance of $5400 for the first three months of 1986. She also testified that she had earned only $3,741 in 1985. There was evidence that appellee‘s rent had increased by $250 per month, and that her utility expenses had increased $350 per month since the date of the prior order. The children‘s food expenses had increased by $200, and their activity expenses had increased by at least $250 per month. Without specifying the amount, appellee testified that the children‘s clothing expenses also increased. She also testified to increased medical expenses that were not promptly paid by appellant‘s medical insurance plan. Additionally, appellee testified that appellant was earning $20,000 per year at the time of the prior modification, and presented evidence that his current net monthly income was $3,200.
We find this evidence sufficient to establish material and substantial changes in the circumstance of the parties and their children, warranting an increase in child support payments to $900 per month.
Finally, appellant contends that the trial court abused its discretion in awarding appellee $3,500 in attorney‘s fees. Appellee‘s counsel testified that his fee of $150 per hour was reasonable. Although counsel testified to “26 hours through today,” there was also evidence that, on February 10, 1986, he billed appellee for 16.4 hours at $150 per hour and 16.1 hours of work done by an assistant at the rate of $45 per hour. Trial work and post-trial work on the judgment was not included in that bill. Additionally, the trial court was aware of the lack of cooperation by appellant, the difficulty involved in service, and the additional expenses incurred because appellant was located outside of Texas. There was sufficient evidence to support the award of $3500, and we find no abuse of discretion. Casterline v. Burden, 560 S.W.2d 499 (Tex. Civ. App.—Dallas 1977, no writ). Appellant‘s third point of error is overruled.
The judgment is affirmed.
W.A. Thurmond, Jeffrey S. Alley, Scott, Hulse, Marshall, Feuille, Finger & Thurmond, El Paso, for appellant.
Raymond Caballero, El Paso, for appellee.
Before SCHULTE, ARMENDARIZ and FULLER, JJ.
OPINION
Appellee sued her former employer claiming wrongful discharge because she had filed a worker‘s compensation claim. Appellant appeals from an adverse verdict. We affirm the judgment of the trial court.
Appellee was hired on March 16, 1982, as personnel director of Appellant‘s company. She was college-educated with thirteen years’ experience in personnel work. On December 22, 1983, she was injured on the job when a file cabinet fell on her resulting in injuries, the more serious being a claimed loss of hearing in one ear. She filed a claim under the Texas Worker‘s Compensation Act. On May 25, 1984, she was terminated. She was then over sixty-
Appellant‘s Points of Error Nos. One and Two urge that the trial court erred in submitting issues on exemplary damages and in entering judgment for exemplary damages for the reason that such damages are not recoverable in a wrongful discharge case [Article 8307c].
Point of Error No. Three claims the trial court erred in that it failed to instruct the jury that “but for” the filing of a worker‘s compensation claim the employee would not have been discharged.
Point of Error No. Four claims error in the instruction on causation, and Point of Error No. Five complains of submission of one issue on causation when two separate worker‘s compensation claims were filed, one of which was in dispute.
The jury‘s instruction in connection with such issue was that Appellee did not have to prove her discharge was solely because of the worker‘s compensation claim but that her proceeding under the worker‘s compensation act was a determining factor in her discharge. We find that such issue and instructions adequately set forth the law.
Points of Error Nos. Six, Seven, Eight, Nine and Ten go to Appellee‘s duty to mitigate damages.
Point of Error No. Six urges that the actual damages found by the jury were against the greater weight and preponderance of the evidence because of Appellee‘s duty to mitigate and that she had refused Appellant‘s job offer.
The court properly instructed the jury on Appellee‘s duty to mitigate by making a good faith effort to obtain and retain employment. Gulf Consolidated International, Inc. v. Murphy, 658 S.W.2d 565 (Tex. 1983).
The mere fact that Appellee rejected a job offer by Azar Western Pecan Growers, Inc., an affiliate of Appellant,
Points of Error Nos. Seven and Eight claim error in the trial court‘s admitting into evidence Appellee‘s attorney‘s letter addressed to Appellant rejecting Appellant‘s offer of employment.
In an attempt to show the jury that Appellee failed to mitigate her damages by rejecting employment, the Appellant introduced into evidence a letter written by Phillip Azar, Sr., who was vice president, vice chairman of the board and owner of fifty percent of the stock of Appellant‘s company. Phillip Azar, Sr. was also the twin brother of Edward Azar, the president of the Appellant company. Phillip Azar, Sr. was president of Azar Western Pecan Growers, Inc., a corporation closely aligned with the Appellant company. The letter offering employment written by Phillip Azar, Sr. offered Appellee a job at the same salary she was making at the time of her termination. The letter was written at the time the case was in litigation, and copies were sent to Edward Azar, Appellee‘s attorney and Appellant‘s attorney. This letter brought a written response from Appellee‘s attorney rejecting the job offer and giving reasons for the rejection.
Appellant chose to offer this letter into evidence rather than to rely on oral testimony as proof that the Appellee failed to mitigate damages. Appellee‘s attorney objected to the admission of this letter and advised the court that if the letter was admitted he would attempt to offer into evidence the reply he made to the letter. Knowing full well that this might happen, the Appellant went ahead and offered the letter into evidence, and now objects to the admission into evidence of the letter written by Appellee‘s attorney rejecting the job offer. The trial court has discretion and could properly admit the letter under the rule of optional completeness. Rule 106, Tex. R. Evid. The court made certain deletions in the letter, and the Appellant still claims error. This Court finds that if there was any error in its admission into evidence, such was invited by the Appellant and it cannot now complain. Appellant‘s Points of Error Nos. Seven and Eight are hereby overruled.
Point of Error No. Nine complains of the failure of the trial court to allow Appellant to cross-examine Appellee about her attorney‘s contingency fee interest in the outcome of the case. Bias or prejudice of the attorney representing the respective parties has no bearing and is not material. Appellee did not sue for attorney‘s fees and, therefore, the trial court‘s rejection of the attempt to introduce the evidence about the attorney‘s contingency fee contract was properly refused. We overrule Appellant‘s Point of Error No. Nine.
Point of Error No. Ten complains of error in that the trial court excluded evidence of Appellee‘s income from Social Security and retirement benefits.
Appellant attempted to introduce evidence of Appellee‘s receipt of Social Security and retirement benefits as her motive for refusal of employment or her lack of enthusiasm for obtaining employment. The trial court excluded such evidence and could properly do so, since it represents income from a collateral source and should not have been admitted. McLemore v. Broussard, 670 S.W.2d 301 (Tex. App.—Houston [1st Dist.] 1983, no writ). Texas General Indemnity Company v. Hamilton, 420 S.W.2d 735 (Tex. Civ. App.—San Antonio 1967, writ ref‘d n.r.e.); Traders and General Insurance Company v. Reed, 376 S.W.2d 591 (Tex. Civ. App.—Corpus Christi 1964, writ ref‘d n.r.e.). Appellant‘s Point of Error No. Ten is overruled.
Point of Error No. Eleven claims the trial court lacked jurisdiction in wrongful discharge cases because such cases have been preempted by the National Labor Relations Act. This point has been decided adversely to Appellant in Ruiz v.Miller Curtain Company, 686 S.W.2d 671 (Tex. App.—San Antonio 1985), rev‘d and remanded, 702 S.W.2d 183 (Tex. 1985), cert. denied, 478 U.S. 1004, 106 S.Ct. 3295, 92 L.Ed.2d 710 (1986). Appellant‘s Point of Error No. Eleven is overruled.
The judgment of the trial court is affirmed.
SCHULTE, Justice, dissenting.
I respectfully dissent from the majority opinion insofar as it approves exemplary damages under the present wrongful discharge statute. The key language contained in
“EXEMPLARY DAMAGES” means an amount which you in your discretion may award as an example to others and as a penalty by way of punishment, in addition to any amount which you may have found as actual damages.
Thus, it appears by the very definition given in this case that exemplary damages constitute an element beyond and not included within the “reasonable damages suffered by an [the] employee.” Punitive damages are “suffered” by no one and are not recoverable under the clear wording of the statute. Under the charge, the jury was asked to award punitive damages as a purely extrinsic independent element, wholly apart from actual damages.
The legislature had no problem spelling out exemplary damages under the same act in those instances where such damages were intended, as in
I would sustain Points of Error Nos. One and Two, reverse and render as to exemplary damages, and affirm the judgment insofar as it awards reasonable damages found by the jury in the sum of $167,464.00, but would reform the judgment to delete the $175,000.00 exemplary damages.