Happy Harbor Methodist Home, Inc. v. Cowins

903 S.W.2d 884, 1995 Tex. App. LEXIS 1675, 1995 WL 444441

Opinions

OPINION ON MOTION FOR REHEARING

OLIVER-PARROTT, Chief Justice.

We deny appellant’s motion for rehearing, withdraw our previous opinion of June 15, 1995, and substitute this opinion in its place.

A jury found Happy Harbor Methodist Home’s gross negligence a proximate cause of Melissa Cowiris physical injuries. Happy Harbor is a nonsubscriber to the Texas Workers Compensation Act. The jury awarded Cowins $157,500 in actual damages and $1,700 in punitive damages. In four points of error, Happy Harbor challenges the legal and factual sufficiency of evidence. In a fifth point of error, Happy Harbor alleges jury bias in awarding damages. We affirm.

On January 3, 1992, Happy Harbor hired Cowins to work as a nurse’s aid at the Happy Harbor Methodist Home. On the morning of Friday, January 24, 1992, Cowins felt her arm “pop” while assisting an elderly lady from a wheelchair into a shower chair. This procedure normally required two people. However, on this particular day, Happy Harbor was shorthanded, so Cowins performed the task by herself. Cowins did receive assistance from another nurse’s aid when transferring the elderly lady back to her wheelchair. Cowins later mentioned the “pop” to some co-workers whose advice was to “get used to it.” Cowins reported the incident to the head nurse the next day after experiencing significant discomfort overnight. Cowins filled out an accident report and was put on light duty. Cowins later visited a doctor upon the advice of the head director of the home. After a few visits and therapy, Cowins was referred to another doctor who performed arthroscopic surgery on the shoulder in April 1992. Some time later, the doctor released Cowins for full duty. Happy Harbor offered to put Cowins back on full duty or on light duty. Cowins felt that she could not adequately perform either job, so she found another job in a preschool in August 1992. Cowins worked there until August 1993 when Cowins resigned and stayed home to care for her ill son. Cowins received semi-monthly payments from Happy Harbor following the accident until April 1993.

In its first four points of error, Happy Harbor contends that the evidence was legally and factually insufficient. Happy Harbor argues that the trial court erred in overruling Happy Harbor’s motion for a new trial because the jury’s answers to the actual damage elements were not supported by sufficient evidence and were so against the great weight and preponderance of the evidence as to be manifestly unjust. In addition, Happy Harbor argues that the jury’s finding that Happy Harbor was guilty of gross negligence was not supported by sufficient evidence and was so against the great weight and preponderance of the evidence as to be manifestly unjust.

Happy Harbor has neglected to include any citation of authority or discussion of the facts to support its sufficiency contention. The rules of appellate procedure require “such discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue.” Tex.R.App.P. 74(f)(2). Happy Harbor does not provide us with argument that is sufficient to make its appellate complaint viable, and we will not perform an independent review of the record and applicable law to determine whether the error complained of occurred. Maranatha Temple, Inc. v. Enterprise Prods. Co., 893 S.W.2d 92, 106 (Tex.App.—Houston [1st Dist.] 1994, writ requested). We will not do the job of the advocate. Id. Further, failure to cite any authority to support a contention on appeal itself waives the contention. Metzger v. Sebek, 892 S.W.2d 20, 45 (Tex.App.—Houston [1st Dist.] 1994, writ denied).

Accordingly, pursuant to Tex.R.App.P. 74(f)(2) and the two recent decisions by this Court, we overrule all four of Happy Harbor’s insufficiency points of error.

In its fifth point of error, Happy Harbor contends that the trial court erred in overruling Happy Harbor’s motion for new trial because the jury’s answers to each of the actual damage elements show that the jury was motivated by factors other than the evidence. Happy Harbor argues that because the jury found actual damages of $157,-500 and only awarded $1,700 in punitive damages, the jury had already punished Happy Harbor in the actual damage phase and merely awarded token punitive damages. Happy Harbor argues that this denies it the protection of the “cap” on punitive damages contained in Tex.Civ.PRAC. & Rem.Code Ann. § 41.007 (Vernon 1986), which provides that the amount of punitive damages awarded may not exceed the greater of four times the actual damages awarded or $200,000. Happy Harbor argues that there is no way of knowing what the amount of actual damages would have actually been and therefore it is unknown whether there was a violation of § 41.007.

Without discussion or analysis, Happy Harbor cites Transportation Ins. Co. v. Moriel, 879 S.W.2d 10 (Tex.1994), to support its contention of jury bias in awarding actual damages. Moriel discussed a new standard of review for punitive damages. Happy Harbor argues jury bias in awarding actual, not punitive, damages. We overrule Happy Harbor’s fifth point of error.