Tamayo, Audrey G. v. Lopez Supermarkets, Inc. and Felipe Lopez, Jr., Individually

• Court: Court of Appeals of Texas
• Decided: September 21, 2000
• Docket: 13-99-00054-CV
• Status: Published

Opinion

NUMBER 13-99-054-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

AUDREY TAMAYO, Appellant,

v.

LOPEZ SUPERMARKET, INC., Appellee.

___________________________________________________________________

On appeal from the 357th District Court of Cameron County, Texas.

___________________________________________________________________

OPINION ON MOTION FOR REHEARING

Before Justices Hinojosa, Chavez, and Rodriguez

Opinion by Justice Chavez

In our opinion of June 29, 2000, we affirmed the judgment of the trial court in all respects except for the issue of appellant's attorney's fees, which we remanded to the trial court. In its motion for rehearing, appellee argued that appellant was not entitled to attorney's fees. We agree. We grant the motion for rehearing, withdraw our opinion of June 29, 2000, and substitute this opinion in its place.

Appellant Audrey Tamayo brought a sexual harassment claim against appellee Lopez Supermarket. Tamayo alleged that, while trying to pass a supervisor in a narrow hallway, he stuck his finger through a gap in the buttons of her blouse, touching her between her breasts, and told her "not to let anything get out." A jury found Lopez liable, but awarded Tamayo only $20 in damages. On appeal, Tamayo argues that the trial court erred in permitting Lopez's attorney to testify regarding attorney's fees when she had not been properly designated, the jury's damages award was against the great weight and preponderance of the evidence, and Lopez's attorney engaged in improper jury argument. We affirm.

In her first point of error, Tamayo complains that Lopez failed to properly designate Elia Cornejo-Lopez, Lopez's attorney, as an expert witness. However, Tamayo failed to designate for inclusion in the clerk's record either her discovery request to Lopez or Lopez's response, and these items are not in the clerk's record. Obviously, Tamayo is unable to comply with Texas Rule of Appellate Procedure 38.1(h), which requires an appellant to make appropriate citations to the record to demonstrate the error asserted. When documentation vital for appellate review is not designated for inclusion in the clerk's record, any appellate complaint regarding that item is waived, and it will be presumed that the missing item supports the trial court's judgment. Miller v. State, 21 S.W.3d 327 (Tex. App.--Tyler 1999, pet ref'd). Appellant's first point of error is overruled.

Appellant's second point of error argues that the jury's finding on damages was against the great weight and preponderance of the evidence. In reviewing a jury verdict to determine the factual sufficiency of the evidence, we consider and weigh all the evidence and set aside the judgment only if the evidence is factually so weak, or the verdict so contrary to the overwhelming weight of the evidence, as to make the judgment clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Appellant testified that her salary at Lopez was $425 per week, or $22,100 per year. The incident giving rise to this lawsuit took place in December 1994, and by February 1995 appellant had left Lopez and was working for Valley Transit Company. Her starting salary at Valley Transit was $1800 per month, or $21,600 per year. However, in July 1995 she received a $40 per month raise, which brought her salary up to $22,080 per year, only $20 per year less than her salary with Lopez. In July 1996 she received another raise from Valley Transit, bringing her annual salary to $22,320.

Appellant also testified that the job at Valley Transit required her to travel further to get to work, and that her claim to have suffered a decrease in salary at Valley Transit was also meant to cover "the gas and the time that I lost, also." However, she did not provide specific figures for her lost time or extra gas expenses.

Appellant testified that the health insurance she received from Valley Transit was not as extensive as the insurance she had with Lopez, and the difference between the two coverages cost her $800. However, on cross-examination she admitted that she arrived at the $800 figure by subtracting $200, the deductible from the insurance with Lopez, from $1000, the deductible from the insurance with Valley Transit. She conceded that, because her health had been good, she had not "felt" the difference between the deductibles. She insisted that her payments for doctor's visits and prescriptions was higher under Valley Transit's insurance, but did not offer any specific testimony about how much the differences were, or what additional expenses she had actually incurred as a result of these differences. She eventually conceded that her damages in the form of health insurance expenses were "a question mark."

Lopez also provided her with the use of a van, a $30,000 life insurance policy, and health insurance. She estimated the value of the free vehicle at $250 per month. However, Miguel Antonio Lopez, a manager for Lopez, testified that in early 1995 Lopez decided to drastically reduce the company vehicle fleet, and that if appellant had stayed with Lopez, she would have lost her company van in April 1995. Appellant received a $5000 life insurance policy as part of her employment with Valley Transit. She did not testify that she had gone to any expense to make up the difference between the policies at Lopez and Valley Transit.

Therefore, the evidence showed that appellant suffered a brief decrease in salary at Valley Transit, but within a year and-a-half she was making more at Valley Transit than she had at Lopez. She lost the use of a vehicle in switching jobs, but the evidence showed that within a few months she would have lost the car even if she has stayed at Lopez. Appellant did not establish any actual economic losses due to the change in health insurance or life insurance. The jury could have concluded that appellant's losses in salary and the use of a car during her first few months in her new job, as well as the "gas and time" in traveling to her new job were nearly offset by the later increase in salary at her now job. We conclude that an award of $20 for economic damages was not against the great weight and preponderance of the evidence.

Appellant also sought compensation for mental anguish and attorney's fees.

Recovery of mental anguish damages requires "direct evidence of the nature, duration, or severity of [plaintiff's] anguish, thus establishing a substantial disruption in the plaintiff's daily routine," or other evidence of a "high degree of mental pain and distress that is more than "mere worry, anxiety, vexation, embarrassment, or anger." Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995).

The evidence presented by appellant did not meet this standard. Appellant testified that she was "visibly upset" when the incident of harassment occurred, and subsequent to that she was "jumpy" and "uncomfortable" around male coworkers. She said she left her job with appellee because she "couldn't handle it anymore." She also testified that her self-esteem after the incident was "pretty low." Appellant did not testify to a "substantial disruption in her daily routine," and the mental pain and distress she described was not more than "mere worry, anxiety, vexation, embarrassment, or anger." Id.

Appellant also complains of the jury's finding on attorney's fees. When asked to assess appellant's reasonable and necessary attorney's fees, the jury answered "$0," and the judgment did not award any attorney's fees to appellant.

Attorney's fees may be recovered as part of the costs by the prevailing party in a sexual harassment case. Tex. Lab. Code Ann. § 21.259 (Vernon 1996). To qualify as a prevailing party, a civil rights plaintiff must obtain at least some relief on the merits of his or her claim. Farrar v. Hobby, 506 U.S. 103, 111 (1992). A judgment in any amount, whether compensatory or nominal, qualifies the plaintiff for "prevailing party" status because the judgment modifies the defendant's behavior by forcing the defendant to pay an amount of money he would not otherwise pay. Id. at 113. However, where the plaintiff's success can be characterized as purely technical or de minimis, a district court is justified in concluding that even this generous formulation has not been satisfied. Texas State Teachers Assoc. v. Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989). The trial court has discretion in determining the appropriate award of attorney's fees. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).

In this case, appellant asked the jury for $10,000 in lost wages, plus further compensation for mental anguish. The jury awarded her only $20 for lost wages, and nothing for mental anguish. This was a de minimis award that left the trial court with discretion to award $0 for attorney's fees. Cf. Tatum v. Morton, 386 F. Supp. 1308, 1317-19 (D.C. 1974) (denying attorney's fees in case where plaintiffs sought $10,000 each, but were awarded only $100 each.) We hold that the jury's determinations on the damages questions were not against the great weight and preponderance of the evidence and overrule appellant's second point of error.

In her third point of error, appellant argues that appellee engaged in improper jury argument by urging jurors to place themselves "in the shoes" of a party to the case. Appellee counters that its argument, even if improper, was invited and provoked by similar argument from appellant, and was insignificant in its effect on the jury's verdict.

During her closing argument, appellant stated:

I like to think of a jury as the conscience of our community. I like to put my shoes on and think, "well, Audrey, how would I feel?" . . . I cannot tell you. I cannot stand in her shoes. . . . But I can stand in my shoes and think if this was my wife how I would be pained. I can stand there and feel that pain. I can feel the pain of humiliation that my wife would have if that was her.

To this, appellee responded:

None of them ever went to the police. [Appellant's counsel] said "if somebody did this to my wife, I would be so angry." I tell you, if somebody did this to his wife, they would be at the police station pressing charges, because if anybody did that to your sisters, you go to the police. You wouldn't go looking for a dime.

Appellant made a proper objection to appellee's argument, but the objection was overruled. We agree that the trial court erred in overruling appellant's objection. Argument that appeals to the jurors to place themselves in the position of a litigant and to consider their own personal feelings in arriving at a verdict is improper. Southern Pac. Co. v. Hayes, 391 S.W.2d 463, 468 (Tex. Civ. App.--Corpus Christi 1965, writ ref'd n.r.e.).

To complain about improper jury argument, it is necessary to show: (1) an error; (2) not invited or provoked; (3) that was preserved by proper trial predicate, such as an objection, a motion to instruct, or a motion for mistrial; (4) that was not curable by an instruction, a prompt withdrawal of the statement, or a reprimand by the judge; and (5) that the argument by its nature, extent, and degree constituted reversibly harmful error. Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839 (Tex. 1979); NationsBank of Texas, N.A. v. Akin, Gump, Hauer & Feld, L.L.P., 979 S.W.2d 385, 398 (Tex. App.--Corpus Christi 1998, pet. denied). "Reversibly harmful error" exists where the probability that appellee's final argument caused harm is greater than the probability that the verdict was grounded on proper proceedings and the evidence. NationsBank v. Akin, Gump, 979 S.W.2d at 398; see also Tex. R. App. P. 44.1.

In this case, appellant's jury argument "invited or provoked" appellee's response. Furthermore, the main point of appellee's improper argument was to cast doubt on the credibility of appellant's testimony by arguing that she had not reacted as would be expected of one who had been victimized in the way appellant described. This argument went to the issue of whether sexual harassment actually ocurred, an issue the jury resolved in appellant's favor, despite the improper argument. To the extent appellee's improper argument went to an issue that the jury resolved in appellant's favor, appellant suffered no harm.

Appellee's argument might also be interpreted as suggesting that appellant suffered no mental anguish. However, as discussed in our consideration of appellant's second point of error, appellant's evidence of mental anguish did not meet the Parkway threshold for recovery of these damages. We conclude that the probability that appellee's final argument caused harm is less than the probability that the verdict was grounded on proper proceedings and the evidence. See NationsBank v. Akin, Gump, 979 S.W.2d at 398; see also Tex. R. App. P. 44.1. We overrule appellant's third point of error.

The judgment of the trial court is affirmed.

MELCHOR CHAVEZ

Justice

Do not publish.

TEX. R. APP. P. 47.3.

Opinion delivered and filed this

the 21st day of September, 2000.