Mosqueda v. G & H Diversified Mfg., Inc.

223 S.W.3d 571, 2007 WL 258154
CourtCourt of Appeals of Texas
DecidedMarch 29, 2007
Docket14-04-00183-CV
StatusPublished
Cited by17 cases

This text of 223 S.W.3d 571 (Mosqueda v. G & H Diversified Mfg., Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mosqueda v. G & H Diversified Mfg., Inc., 223 S.W.3d 571, 2007 WL 258154 (Tex. Ct. App. 2007).

Opinions

MAJORITY OPINION

CHARLES SEYMORE, Justice.

In this personal injury case, Guillermina Mosqueda appeals a judgment notwithstanding the verdict (“JNOV”) in favor of G & H Diversified MFG., Inc. (“G & H”) and a summary judgment granted in favor of Edward Kash, Kash Family Partnership, and Kash Holdings L.L.C. (collectively, the “Kashes”).

I. Factual And PROCEDURAL Background

Edward Kash is the president of G & H, a manufacturing firm. Kash formed Kash Holdings, L.L.C. (“Kash Holdings”) and Kash Family Partnership, L.P. (“KFP”). G & H used various temporary employment agencies, including Pacesetter Personnel Service, Inc. (“Pacesetter”) and Link Staffing (“Link”), to supply skilled and unskilled laborers. Guillermina Mos-queda, an unskilled laborer, was initially recruited or employed by Pacesetter. On January 31, 2001, she sustained bodily injury while operating or cleaning a machine on the premises of G & H. Felix Gonzales, a G & H employee, was supervising Mos-queda’s work when she was injured.

Pacesetter generated daily time tickets reflecting the number and identity of temporary employees furnished to G & H. The time ticket for appellant’s date of injury was not offered or admitted into evidence. However, the following language pertinent to our inquiry appears on the back of time tickets that were admitted into evidence:

“Conditions of Service”:
Customer designated on the front hereof confirms its agreement with The Temporary Personnel Service (“Service”) designated on the front hereof as to the following terms and conditions of services rendered by the Service now or in the future.
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3. The Service is the employer of personnel furnished to Customer and Customer agrees to discuss all matters concerning their employment with the Service. The Service ... is responsible for ... the maintenance of Worker’s Compensation Insurance. Customer is the worksite employer with authority to [575]*575direct the work to be done, ... and supervise the employees.
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8. Customer agrees that it will not permit or assign the Service employees to perform any work which would expose them to any unreasonably dangerous working conditions.

(emphasis added). Mosqueda received statutory workers’ compensation benefits from Pacesetter’s insurance carrier. Thereafter, she sued G & H and the Rashes, asserting claims for premises liability, negligence, products liability, gross negligence, and breach of contract. She also alleged single business enterprise, joint business enterprise, and alter ego. The trial court granted the Kashes’ motions for summary judgment, concluding there was no genuine issue of material fact to support any of Mosqueda’s claims against those persons or entities. At trial, G & H contended it was entitled to immunity from liability under the exclusive remedy provisions of the Workers’ Compensation Act because Mosqueda was its “borrowed employee.” The trial court submitted and the jury answered the following question:

Question No. 1

On the occasion in question, was Guiller-mina Mosqueda acting as a borrowed employee of G & H Diversified Manufacturing, L.P.?
One who would otherwise be in the general employment of one employer is a “borrowed employee” of another employer if such other employer or its agents have the right to direct and control the details of the particular work in question.
Answer “Yes” or “No.”
Answer: No

The trial court granted G & H’s motion for JNOV, in which G & H asserted that it was entitled to judgment as a matter of law based on its affirmative defense of the workers’ compensation bar.

II. Issues PRESENTED

In Mosqueda’s first six issues, she challenges the JNOV on the following grounds: (1) G & H failed to establish, as a matter of law, formation of a written contract that gave G & H the right to control Mosqueda at the time of her injury; (2) Mosqueda presented some evidence that there was no contract which controlled her status as an employee; (3) there was some evidence that G & H did not have the right to control details of the particular work in question; (4) the common law right of control test does not apply because the “purported” written agreement denominates Pacesetter as the employer responsible for providing workers’ compensation insurance; (5) there was some evidence that Link Staffing was controlling Mosque-da’s work when she sustained injury; and, (6) G & H did not establish that Mosqueda was a covered “employee” and that it was an “employer” under the Texas Worker’s Compensation Act.

III. STANDARD OF REVIEW

In reviewing the trial court’s judgment notwithstanding the verdict, we consider the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. See City of Keller v. Wilson, 168 S.W.3d 802, 821 (Tex.2005). We must credit favorable evidence if a reasonable factfinder could do so and disregard contrary evidence unless a reasonable factfinder could not. See id. at 827. However, we cannot disregard undisputed evidence that allows one logical inference. See id. at 814. Moreover, incompetent evidence is legally insufficient to support a judgment, even if admitted without objection. See id. at 812. Evidence that might [576]*576be “some evidence” when considered in isolation is nevertheless rendered “no evidence” when contrary evidence shows it to be incompetent. Id. For example, an employee’s testimony that he was in the course and scope of his employment is legally insufficient to support a verdict against his employer if the evidence shows that legal conclusion to be incompetent. Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 579 (Tex.2002).

If this court finds no competent evidence to support the verdict, then we review the record to determine if G & H established the contrary position as a matter of law.1 We will affirm the JNOV if there is no evidence to support an issue, or conversely, the evidence establishes an issue as a matter of law. See Exxon Corp. v. Quinn, 726 S.W.2d 17, 19 (Tex.1987). When a movant for JNOV challenges an adverse finding on an affirmative defense, it must conclusively establish all vital facts in support of that defense. Dow Chemical Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001).

IV. Analysis

A. Does the evidence conclusively prove G & H and Pacesetter agreed that the Conditions of Service would govern Mosqueda’s work at the time she was injured?

Under her first issue, Mosqueda asserts the following:

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Bluebook (online)
223 S.W.3d 571, 2007 WL 258154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mosqueda-v-g-h-diversified-mfg-inc-texapp-2007.