Los Compadres Pescadores, L.L.C. v. Juan G. Valdez and Alfredo Teran ( 2019 )

NUMBER 13-17-00344-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI–EDINBURG
LOS COMPADRES PESCADORES, L.L.C., Appellant,
v.
JUAN G. VALDEZ AND ALFREDO TERAN, Appellees.
On appeal from the County Court at Law No. 2
of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
Memorandum Opinion by Chief Justice Contreras
Appellant Los Compadres Pescadores, L.L.C. (Los Compadres) appeals a final
judgment in favor of appellees Juan G. Valdez and Alfredo Teran. By seven issues, Los
Compadres contends that the judgment awarding appellees damages for personal
injuries should be reversed because: (1) Chapter 95 of the Texas Civil Practice and
Remedies Code applies to appellees’ suit (issue one); (2) there was no jury finding as
required by Chapter 95 that Los Compadres had actual knowledge of the danger or
condition that resulted in appellees’ injuries or that Los Compadres had control over
appellee’s work (issues two and three); (3) there was no jury question supporting a finding
that Los Compadres was liable under an agency theory (issue four); appellees were
aware of the danger so Los Compadres cannot be held liable for the failure to warn (issue
five); and (5) the evidence is legally and factually insufficient under Chapter 95 to support
a finding of causation (issues six and seven). See TEX. CIV. PRAC. & REM. CODE ANN.
§ 95.002. We affirm.
I. BACKGROUND
Los Compadres hired Luis Torres to supervise and coordinate the construction of
condominiums on South Padre Island and Luis Robert Paredes Jr., doing business as
Paredes Drilling Co., to perform specialty drilling work required to dig the foundation piers
for the condominiums. 1 Paredes hired both appellees and Ricardo Gallin, a non-party, to
assist with the drilling work on the property.
According to Paredes, he usually works from the back of a property to the front
when performing the drilling work; however, in this case Torres asked him to begin in the
front of the property due to an energized power line hanging overhead in the back portion
of the property located on an easement. Paredes stated that Torres told him to work
around the line, and he did so. Paredes testified that he asked Torres about the power
1 The parties dispute Torres’s role in the project. Los Compadres claims that he was hired as their
general contractor while appellees claim that Los Compadres hired him to act as its agent/employee.
2
line, and Torres told him that he “was going to talk to AEP about it.”2 Specifically, Paredes
testified that Torres said, “I’m going to take care of it. I’ll talk to them.” Subsequently,
Paredes said that he saw Torres on the worksite “with somebody from AEP.” Paredes
stated, “I wasn’t in the conversation, but after Torres walked towards me, I said, ‘Are we
good to go?’ And he said, ‘Yes, go ahead and go.’” Torres testified that Paredes “said
he was going to take care of the line”; however, on the date of the incident, the line had
not been de-energized.
According to Paredes, on February 10, 2010, the date of the accident, Torres was
not present; however, Torres’s brother was there. 3 Paredes remembered talking to
Torres on his cell phone and on Torres’s brother’s cell phone, and Torres informed him
that AEP would not be de-energizing the power line. According to Paredes, Torres
instructed him to “go forward that day, even though the lines weren’t de-energized.”
Paredes also stated, “He [Torres] didn’t tell me whether [the line] was de-energized or
energized, he just told me that—you know, it was—I knew it was there and I knew he had
told me to go . . . forward.”
Paredes, appellees, and Gallin dug a hole approximately ten feet from the power
line. The men poured cement into the hole and used a metal rebar to push air pockets
out of the concrete. Appellees assisted Paredes with lifting and maneuvering the rebar
because it was heavy. While the men maneuvered the rebar, it contacted the power line
and the men were electrocuted. Paredes and appellees were thrown back, knocked
2 AEP stands for American Electric Power, which is “a competitive retail energy provider for more
than 400,000 customers.” See AMERICAN ELECTRIC POWER, http://www.aep.com (last visited May 30, 2019).
The evidence showed that AEP owned the power line that caused appellees’ injuries.
3 Paredes could not recall Torres’s brother’s name.
3
unconscious, and sustained burns. Appellees were transported to the hospital and
treated for their injuries.
Appellees sued Los Compadres for premises liability and negligence, alleging that
Los Compadres’ agent, acting in the course and scope of employment, was guilty of the
following negligent conduct: (1) failing to notify the operator of the electrical line (AEP) at
least forty-eight hours before the work began in violation of Chapter 752.003(a) of the
Texas Health and Safety Code; (2) failing to negotiate a satisfactory mutual arrangement
to provide temporary de-energization and grounding or temporary relocation of the line in
violation of Chapter 752.003(b) of the Texas Health and Safety Code; and (3) performing
a function or activity on land when it was not safe to do so, thereby causing appellees’
injuries in violation of Chapter 752.004 of the Texas Health and Safety Code. See TEX.
HEALTH & SAFETY CODE ANN. §§ 752.003, 752.004.
The jury found that Los Compadres was 50% negligent and that Paredes and AEP
were each 25% negligent in causing appellees’ injuries. The trial court ordered Los
Compadres to pay Valdez $96,983.51 in damages and pre-judgment interest and to pay
Teran $52,011.57 in damages and pre-judgment interest. Because appellees settled with
AEP, the trial court gave Los Compadres and Paredes settlement credits of $17,700 for
Valdez and $7,300 for Teran. This appeal followed.
II. APPLICABLE LAW
“Chapter 95 enunciates a general rule of non-liability for property owners when a
contractor or subcontractor or an employee of a contractor or subcontractor is injured
while performing repairs or construction.” Rosa v. Mestena Operating, LLC, 461 S.W.3d
181, 182–87 (Tex. App.—San Antonio 2014, pet. denied). The property owner has the
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initial burden to establish that Chapter 95 applies. Montoya v. Nichirin–Flex U.S.A., Inc.,
417 S.W.3d 507, 511 (Tex. App.—El Paso 2013, no pet.). A property owner establishes
that Chapter 95 applies if the plaintiff’s claim is for personal injury that “arises from the
condition or use of an improvement to real property where the contractor or subcontractor
constructs, repairs, renovates, or modifies the improvement.” TEX. CIV. PRAC. & REM.
CODE ANN. § 95.002. Once the property owner establishes that Chapter 95 applies, the
burden shifts to the plaintiff to establish that the property owner (1) exercised or retained
some control over the manner in which the work was performed, other than the right to
order the work to start or stop or to inspect progress or receive reports and (2) had actual
knowledge of the danger or condition resulting in the personal injury, death, or property
damage and failed to adequately warn the plaintiff of that danger or condition. Id.
Chapter 95 is the plaintiff’s sole means of recovery if it applies. Ineos USA, LLC
v. Elmgren, 505 S.W.3d 555, 561 (Tex. 2016). “Chapter 95 only applies when the injury
results from a condition or use of the same improvement on which the contractor (or its
employee) is working when the injury occurs.” Id. at 567 (emphasis added).
III. CHAPTER 95
By its first issue, Los Compadres contends that we must recognize that Chapter
95 applies.
As we understand it, Los Compadres first generally argues that appellees’ claims
are governed by Chapter 95 because the Texas Supreme Court has construed Chapter
95’s “condition or use” language to mean that Chapter 95 applies to both premises liability
and negligence claims against a property owner. We agree with Los Compadres that
Chapter 95 applies to “‘all negligence claims that arise from either a premises defect or
5
the negligent activity of a property owner or its employees.’” Torres v. Chauncey Mansell
& Mueller Supply Co., 518 S.W.3d 481, 486 (Tex. App.—Amarillo 2017, pet. denied).
However, as further explained below, for Chapter 95 to apply, a property owner must first
establish that the plaintiff’s injury was caused by the same improvement the plaintiff was
constructing, repairing, renovating, or modifying when the injury occurred. Ineos USA,
LLC, 505 S.W.3d at 567. Thus, although this case involves negligence claims and Los
Compadres is the property owner, our analysis does not end there. 4 See id.
Los Compadres had the initial burden to establish that Chapter 95 applies by
showing that (1) Los Compadres is a property owner, (2) appellees alleged that Los
Compadres is liable for personal injury, (3) appellees were employees of a contractor or
subcontractor, and (4) appellees’ claims arise from a condition or use of an improvement
to Los Compadres’ property where the contractor or subcontractor was constructing,
repairing, renovating, or modifying the improvement. See Montoya, 417 S.W.3d at 511.
Although, Los Compadres states in its brief that there is no dispute as to the first three
elements, it does not specifically state that appellees were constructing, repairing,
renovating, or modifying an improvement when the injury occurred. 5 See id.
Nonetheless, Los Compadres cites Torres—a case that has similar facts. In
Torres, the appellant was electrocuted when the handle of a bull float he was using to
4We note that Los Compadres did not ask the trial court to make a ruling regarding the applicability
of Chapter 95, and we are addressing this issue for the first time on appeal. Nonetheless, a defendant’s
claim that Chapter 95 applies is not an affirmative defense, and the defendant is not required to plead it.
Gorman v. Ngo H. Meng, 335 S.W.3d 797, 802 (Tex. App.—Dallas 2011, no pet.). “The issue is not whether
[Los Compadres] presented evidence or argument in the trial court about the applicability of [C]hapter 95.
Rather, we must determine, considering the record as a whole, whether the trial court erred by determining
[C]hapter 95 [does not apply to appellees’] claims against [Los Compadres].” Id.
5 Appellees also do not address this prong explicitly in their brief.
6
smooth freshly poured cement in a parking lot touched an electrical line that was hanging
overhead. 518 S.W.3d at 484. The trial court granted summary judgment in favor of the
property owner, and the appellate court affirmed, holding in relevant part, that Chapter 95
applied because the power line was part of the workplace, which the court concluded
must be considered when determining whether Chapter 95 applies. Id. at 485. The
Torres court relied on Ineos and disavowed Hernandez v. Brinker International, Inc., 285
S.W.3d 152, 157–58 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (plurality op.), even
though the Ineos court cited Hernandez approvingly and relied upon to hold that Chapter
95 only applies if the injured plaintiff was constructing, repairing, renovating, or modifying
the same improvement that caused the injury. 6 Ineos USA, L.L.C., 505 S.W.3d at 567;
Torres, 518 S.W.3d at 484.
The Ineos court adopted the Hernandez analysis. See 505 S.W.3d at 567. In
Hernandez, the appellant was hired to fix an air conditioning unit, and while he carried a
compressor either walking to the unit or away from it, the roof where the unit was located
collapsed, causing the appellant’s injury. 285 S.W.3d at 154. The property owner filed a
motion for summary judgment claiming that Chapter 95 barred the plaintiff’s recovery
because the appellant testified that the property owner exercised no control over his work.
Id. The trial court granted the summary judgment. Id.
On appeal, the appellant argued that Chapter 95 only applied if his claim arose
from the condition or use of the improvement he was repairing (the air conditioning
system), but because his claim arose from the condition of a different improvement (the
6 The supreme court cited Hernandez with a parenthetical which stated, “holding that Chapter 95
did not apply because the injury arose from a different improvement than the one the plaintiff was repairing.”
Ineos USA, L.L.C. v. Elmgren, 505 S.W.3d 555, 567 (Tex. 2016).
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roof), Chapter 95 did not apply. Id. at 155. The property owner conceded the injury
resulted from the use of the roof and not from the condition or use of the air conditioning
system; however, it argued that the entire building was the “improvement,” and the air
conditioning unit was a mere “fixture” to the building. Id. The court of appeals agreed
with the appellant and held that the roof and the air conditioning unit were separate
improvements to real property and that Chapter 95 applies only to a claim that involves
the same improvement for which the contractor was on the premises to work on at the
time of the injury. Id. at 158.
The Texas Supreme Court in Ineos agreed with the holding in Hernandez,
explaining that Chapter 95 applies only when the injury results from a condition or use of
the same improvement that the contractor is constructing, repairing, renovating, or
modifying. 505 S.W.3d at 567. The Ineos court then analyzed whether the summary
judgment evidence established that the improvement the injured party was constructing,
repairing, renovating, or modifying was the same improvement that caused his injury. Id.
at 567–68. “In evaluating the applicability of Chapter 95,” the Ineos court
examined whether [the plaintiff’s] injuries arose from a condition of the
specific improvement on which he was working at the time of the injury. The
[plaintiff] sustained injury in an explosion while replacing a valve on a
furnace header. His injury occurred while working on a “common header
system” of furnace 101B, while the gas leak occurred in a pipe valve near
a different furnace, 101D. Each furnace could be shut down separately
without shutting down any of the other furnaces. The court stated, even
though the valves and furnaces were separate in a technical sense, the
evidence established they were “all part of a single processing system
within a single plant.” The court did not divide the gas processing system
valve-by-valve or line-by-line into separate, discrete improvements and held
that the processing system was a single improvement for purposes of
Chapter 95, defining “improvement” to include all additions to the freehold
except for trade fixtures that can be removed without injury to the property.
Lopez v. Ensign U.S. S. Drilling, LLC, 524 S.W.3d 836, 844 (Tex. App.—Houston [14th
8
Dist.] 2017, no pet.) (internal citations omitted).
The Torres court acknowledged that Ineos agreed with the law in Hernandez (that
the plaintiff must have been injured by the same improvement), but it refused to assume
that the supreme court agreed with the application of the law to the facts in that case.
518 S.W.3d at 488–89. Instead, the Torres court determined that Hernandez was wrongly
decided because the plaintiff could not have worked on the air conditioning unit without a
foundation (the roof). Id. The Torres court “read Ineos as directing [it] to determine what
the ‘improvement’ is by looking at it as a whole, not in potentially divisible parcels.” Id. at
487. In evaluating Ineos, the Torres court stated,
What constitutes an improvement is not limited to the specific mechanism
(e.g. gas valve) causing the injury. Rather, the interrelationship of the
mechanism with its physical (e.g. within a ‘single processing system’) and
geographic (e.g. ‘within a single plant on Ineos’ property) environments are
factors that define the improvement’s breadth.
Id. Therefore, the Torres court determined that the injury to the plaintiff in Hernandez was
a result of the condition or use of the same improvement the plaintiff was constructing,
repairing, renovating, or modifying. Id. at 489.
Without addressing whether, in this case, Los Compadres established that the
improvement appellees were constructing, repairing, renovating, or modifying (the
foundation) was the same improvement (the power line) that caused their injuries, Los
Compadres points out that in Torres, “the electrical lines were part of the ‘workplace’
provided by the property owner” and “Chapter 95.003 explicitly contemplates claims
against a property owner regarding the provision of a ‘safe workplace,’ and was intended
to cover Torres’s claims against the property owner for his electrocution at the job site.”
Los Compadres then argues that “[t]he present case presents a nearly identical situation”
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to the situation in Torres, and “[a]ppellees sued Los Compadres for premises liability and
negligent activity after [a]ppellees sustained injuries from electrocution while working as
subcontractors on [Los Compadres’] property.” Los Compadres ends by stating, “Under
the plain language of Chapter 95 and the precedent provided by the Texas Supreme
Court, Chapter 95 plainly governs Los Compadres’ liability as a matter of law.” 7
Thus, as we understand it, Los Compadres, relying on Torres, believes that
Chapter 95 applies to injuries that arise from the failure to provide a safe workplace;
therefore, the nature of the workplace must be factored into our analysis. However, Ineos
does not factor the safety of the workplace in a general sense into its analysis. See 505
S.W.3d at 567. Ineos did not discuss the conditions of the area or object being improved,
the failure to provide a safe workplace, or the nature of the workplace provided. See id.
The Ineos court analyzed the facts to determine whether the pipe that caused the
plaintiff’s injury was the same improvement as the pipe he was hired to repair. Id. at 567–
68. The Ineos court found that the pipes were “all part of a single processing system
within a single plant,” and therefore the pipe that caused the plaintiff’s injury was the same
improvement he was hired to repair. Id. at 568.
In Lopez, the court of appeals relied on Ineos when it determined that a rig was
not an improvement to real property and that a rig and well used for drilling were not a
single system or a single improvement because there was no evidence that the rig was
permanently annexed to the well, such that it was transformed into an improvement. 524
S.W.3d at 844. The court relied on the following: (1) the well and rig had separate
7 Los Compadres does not provide any other argument that we can construe as supporting a
contention that the improvement appellees were improving constitutes the same improvement that caused
their injuries.
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owners; (2) the stairway where the injury occurred was part of the rig; (3) there was
evidence that the rig was a unit independent of, and physically separable from, the well;
and (4) the rig was described as a mobile unit designed to be unattached from property
and moved from one location to another. Id. The court held that the evidence did not
establish that Chapter 95 applied to the plaintiff’s claim. Id.
The Lopez court declined to follow Painter v. Momentum Energy Corp., 271
S.W.3d 388, 397 (Tex. App.—El Paso 2008, pet. denied), a case decided prior to Ineos.
Painter held that although the rig was not a part of the well, Chapter 95 applies “despite
the fact that the object causing the injury is not itself an improvement, where the injury
arises from work being done on an improvement.” Lopez, 524 S.W.3d at 847 n.7 (citing
Painter, 271 S.W.3d at 397–98). The Painter court determined that the rig and well were
part of the same improvement. 271 S.W.3d at 397. The Lopez court found Painter
inconsistent with Ineos and refused to follow it. 524 S.W.3d at 844.
An improvement to real property is defined as “all additions to the freehold except
for trade fixtures [that] can be removed without injury to the property.” Abutahoun v. Dow
Chem. Co., 463 S.W.3d 42, 49 (Tex. 2015); see Lopez, 524 S.W.3d at 844. Here, the
power line belonged to AEP, was in the easement, and there is no evidence that it was
an addition to the freehold. 8 See id. And Los Compadres has made no argument that
the power line was an improvement to the real property in this case. Based on the cited
authorities and the record before us, we cannot conclude that the evidence established
that the overhead power line in this case was an improvement to the real property.
8 We note that Los Compadres stated in a motion for summary judgment that “the power line at
issue in this lawsuit was not on [its] premises, but rather was on an easement used by AEP, which Los
Compadres does not control.”
11
Moreover, even assuming without deciding that the power line could be considered
an improvement to real property, it was Los Compadres’ burden to establish that the
power line was the same improvement appellees were hired to construct, repair,
renovate, or modify. See Ineos USA, LLC, 505 S.W.3d at 567. The Ineos court concluded
that the pipe that injured the appellant was the same improvement because the evidence
established that the valves and furnaces were “all part of a single processing system
within a single plant.” 505 S.W.3d at 568 (emphasis added). In Torres, the property
owner filed a motion for summary judgment with evidence establishing that the power line
was the same improvement because it was part of the workplace. 518 S.W.3d at 485.
However, the Torres court acknowledged that, although it believed that the roof and air
conditioning unit in Hernandez were part of the same improvement, it could “see a
scenario where the interrelationship between the air conditioner, its surroundings and the
point of injury becomes too attenuated” for an appellate court to determine that the air
conditioning unit and the foundation are part of the same improvement. 518 S.W.3d at
489.
Here, Los Compadres has not directed us to any evidence supporting its assertion,
and it does not direct this Court to the record where it argued to the trial court that Chapter
95 applied as a matter of law because the power line was part of the same improvement.
Unlike Torres, which involved a summary judgment with evidence attached supporting
the trial court’s finding that Chapter 95 applies, here there was a jury trial, and Los
Compadres did not ask the trial court to either rule as a matter of law that the power line
is the same improvement or request a jury question regarding same. Thus, because the
initial burden rested with Los Compadres to establish the applicability of Chapter 95 in
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the trial court, and it did not do so, we cannot conclude that the trial court abused its
discretion or erred in any way by not so finding. Moreover, without citation to evidence
regarding the interrelationship between the specific mechanism causing the injury (the
power line) with its physical and geographic environments, we are unable to follow
Torres’s reasoning here as we have nothing before us to analyze. 9 We overrule Los
Compadres’ first issue. 10
IV. VICARIOUS LIABILITY THEORY
By its third issue, Los Compadres contends that appellees’ vicarious liability theory
of recovery is waived because they did not request a jury question regarding whether
Torres was its agent. Specifically, Los Compadres argues that under Rule 279, appellees
were required to obtain a finding that Torres was its employee. See TEX. R. CIV. P. 279.
Rule 279 “provides that, unless the issue was conclusively established by the
evidence, a party’s failure to submit a properly worded issue, or to object to its omission,
results in waiver.” 11 Robertson v. Odom, 296 S.W.3d 151, 159 (Tex. App.—Houston [14th
9 The evidence established that the power line was not located on the property and did not belong
to Los Compadres.
10 By its second issue, Los Compadres contends that appellees failed to request jury questions
regarding Chapter 95’s requirement that Los Compadres had actual knowledge and control. However, as
we have concluded that Los Compadres failed to meet its initial burden of establishing Chapter 95’s
applicability, the burden never shifted to appellees, and we need not address this issue as it is not
dispositive. See TEX. R. APP. P. 47.1.
In addition, Los Compadres argues in its reply brief for the first time that it was undisputed in the
trial court that Chapter 95 applies. However, we need not address a new issue not raised by the appellant
in the original brief. Donaldson v. Tex. Dep’t of Criminal Justice-Corr. Institutions Div., 355 S.W.3d 722,
727 (Tex. App.—Tyler 2011, pet. denied). Therefore, we decline to do so here, especially considering that
Los Compadres did not state in its original brief that it was undisputed that Chapter 95 applied and asked
us to determine whether it did apply. Specifically, Los Compadres’ first issue stated, “Does Chapter 95 of
the Texas Civil Practice and Remedies Code govern this suit, since Appellees seek to hold Los Compadres
liable for personal injuries incurred while Appellees were working as subcontractors on Los Compadres’
land?”
11“Evidence is conclusive only if reasonable people could not differ in their conclusions, a matter
that depends on the facts of each case.” City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005).
13
Dist.] 2009, no pet.) (citing TEX. R. CIV. P. 279). In other words, if the evidence
conclusively established that Torres was Los Compadres’ agent, then appellees were not
required to submit this issue to the jury under Rule 279. See id. However, Los
Compadres does not argue or address whether appellees conclusively established that
Torres was an agent. See id. As the appellant, it is Los Compadres’ burden to challenge
the judgment on all possible grounds, and because it has not done so, it has not
established its entitlement to reversal on the basis that appellees waived their vicarious
liability theory under rule 279. See id.; Bank of Tex. v. VR Elec., Inc., 276 S.W.3d 671,
677 (Tex. App.—Houston [1st Dist.] 2008, pet. denied) (“If a claim is established as a
matter of law, no question must be submitted to the jury for consideration.”). Accordingly,
we cannot conclude that the trial court’s judgment should be reversed on this basis. We
overrule Los Compadres’ third issue.
V. CONFLICTING JURY FINDINGS
By its fourth issue, Los Compadres contends that the jury issued conflicting
findings. Appellees claim that Los Compadres waived its complaint because it failed to
object before the jury was discharged.
“When an irreconcilable conflict involves one jury answer that would require a
judgment in favor of the plaintiff and another that would require a judgment in favor of the
defendant, the conflict is fatal.” USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479,
509 (Tex. 2018). To properly preserve a complaint that there is a fatal irreconcilable
conflict in the jury’s verdict, the party “must raise that objection before the trial court
Conclusive evidence can be disputed evidence. Id. If a claim is established as a matter of law, no question
must be submitted to the jury for consideration. Brown v. Bank of Galveston, 963 S.W.2d 511, 515 (Tex.
1998). Appellees claim that the evidence conclusively established that Torres was Los Compadres’ agent.
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discharges the jury.” Id. at 518.
Los Compadres concedes that it did not object to the jury’s alleged fatal conflicts
prior to its discharge. See id. Therefore, error, if any, is not preserved for appeal. See
id.; see also Davis v. Vaughters, No. 01-17-00612-CV, 2018 WL 5661317, at *5 (Tex.
App.—Houston [1st Dist.] Nov. 1, 2018, no pet.) (mem. op.) (“Even were we to conclude
that Davis has identified a conflict in the jury’s answers, which we do not, it is well-
established that ‘to preserve error based on fatally conflicting jury answers, parties must
raise that objection before the trial court discharges the jury.’”).
In light of its failure to preserve this issue, Los Compadres requests that we remand
the cause for a new trial in the interest of justice. It states in its reply brief that in
Menchaca, a plurality opinion, three justices
opined that irreconcilable jury responses did not constitute fundamental
error, and concluded that an objection was required prior to the jury’s
discharge. Nonetheless, these justices voted with the majority to remand
the case for a new trial in the interest of justice, because the Court’s decision
addressed confusion in the error preservation requirements for
irreconcilable jury responses.
See Menchaca, 545 S.W.3d at 505. However, Los Compadres does not explain with
legal argument and citation to applicable authority why it is entitled to a new trial in the
interest of justice in this Court and how this Court has authority to do so when we do not
have the same authority to remand in the interest of justice as the Texas Supreme Court.
See TEX. R. APP. P. 38.1(i); Wall v. State Farm Lloyds, ___ S.W.3d ___, ___ No. 01-17-
00681-CV, 2018 WL 6843781, at *5 (Tex. App.—Houston [1st Dist.] Dec. 31, 2018, no
pet.) (refusing to remand in the interest of justice because it had not found error warranting
reversal in the trial court’s judgment and explaining that the rules for remand in the interest
of justice are not the same in the Texas Supreme Court and the intermediate courts). We
15
overrule Los Compadres’ fourth issue.
VI. OPEN AND OBVIOUS DANGER
By its fifth issue, Los Compadres contends that “the judgment cannot stand
because the power lines posed an open and obvious danger, of which [it] had no duty to
warn.” Los Compadres argues that the “evidence conclusively established that the power
line was plainly apparent.”
“[W]hen one speaks of a condition as being open and obvious, the phrase means
that there is no dispute in the evidence or facts which will charge [the injured party] with
knowledge and full appreciation of the nature and extent of the danger.” Sun Oil Co. v.
Massey, 594 S.W.2d 125, 128 (Tex. App.—Houston [1st Dist.] 1979, writ ref’d n.r.e.). If
the injured parties are unaware that the visible power lines are energized, the power lines
are not necessarily an open and obvious danger. Id. “Evidence is conclusive only if
reasonable people could not differ in their conclusions, a matter that depends on the facts
of each case.” City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005).
At trial, Teran testified that he was unaware that the power line was energized, and
on cross-examination, when Los Compadres’ trial counsel asked if Teran knew the power
line was energized, Teran replied, “No.” Later, on cross-examination, Teran stated, “I
didn’t know—I didn’t know that [the power lines] had energy.” On cross-examination by
Los Compadres’ trial counsel, Valdez claimed that he did not notice the power line until
the day of the accident and stated that he “never thought that [the power line] had energy.”
Los Compadres’ trial counsel asked, “Well, did you ever discuss with anybody whether
they had energy or not?” Valdez replied, “No, I—I thought they were not electrified until
we were hit.” Valdez testified that Paredes did not tell him anything about the power line.
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Los Compadres cites evidence that it claims contradicts or conflicts with Valdez’s
and Teran’s testimony; however, any conflicts in the evidence were resolved by the fact
finder. See City of Keller, 168 S.W.3d at 820. Thus, because there is evidence that the
appellees were unaware that the power lines were energized and that no one told them
they were, we conclude that reasonable minds could have differed in their conclusions
regarding whether the power line was an open and obvious danger. See Sun Oil Co.,
594 S.W.2d at 128 (explaining that the danger of the electrified power lines was not open
and obvious because although the power lines were visible, there was no evidence that
the injured parties knew that they were charged with electricity). Therefore, we cannot
conclude that, as a matter of law, the danger was open and obvious solely because the
power line was visible. See id. We overrule Los Compadres’ fifth issue.
VII. LEGAL AND FACTUAL SUFFICIENCY
By its sixth and seventh issues, Los Compadres contends that the evidence is
legally and factually insufficient to support the judgment under Chapter 95. However, we
have concluded that Chapter 95 does not apply; therefore, we need not address these
issues as they are not dispositive. See TEX. R. APP. P. 44.1.
As a sub-issue to its seventh issue, Los Compadres claims that the evidence is
legally and factually insufficient to establish that the power line caused the injuries
because appellees could not state exactly how they were electrocuted. Specifically, Los
Compadres argues that appellees were required to explain how the rebar contacted the
power line and because they did not do so, the evidence is insufficient.
Los Compadres cites case law wherein the plaintiff could not establish that the
complained-of item caused the injury. See Summers v. Fort Crockett Hotel, Ltd., 902
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S.W.2d 20, 26 (Tex. App.—Houston [1st Dist.] 1995, writ denied) (concluding that the
plaintiff could not establish that the height and design of a railing on a balcony caused
him to fall because the plaintiff’s theory of the occurrence was merely speculative and
there was no evidence that it was faulty); Tex. Dep’t of Corr. v. Jackson, 661 S.W.2d 154,
157 (Tex. App.—Houston [1st Dist.] 1983, writ ref’d n.r.e.) (stating that plaintiff could not
establish that a faulty tool belt was the cause of his injury and his mere speculation that
the tool belt failed causing him to fall did not amount to circumstantial evidence that the
tool belt caused his injury). However, here, although the men were not able to explain in
precise detail how the power line hit the rebar, Torres, Valdez, and Teran all testified that
the complained-of power line electrocuted them when it encountered the rebar. There is
no dispute regarding whether the rebar contacted the power line in this case or whether
that caused appellees’ injuries. Therefore, considering the evidence in the light most
favorable to the jury’s verdict, we conclude there is some evidence supporting the jury’s
finding that the power line caused appellees’ injuries. See City of Keller, 168 S.W.3d at
827 (establishing that when the appellant challenges the legal sufficiency of the evidence
supporting an adverse finding on which he did not have the burden of proof at trial, the
appellant must demonstrate that there is no evidence to support the adverse finding).
Accordingly, the evidence was legally sufficient. See id. Moreover, after considering all
of the evidence, we cannot say that the finding is so contrary to the overwhelming weight
of the evidence as to be clearly wrong and unjust. See Mar. Overseas Corp. v. Ellis, 971
S.W.2d 402, 406–07 (Tex. 1998). We overrule Los Compadres’ sub-issue.
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VIII. CONCLUSION
We affirm the trial court’s judgment.
DORI CONTRERAS
Chief Justice
Delivered and filed the
20th day of June, 2019.
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