Saturday, August 18, 2007

Proving damages essential to recover on breach of contract claim - judgment reversed

Shaoguang He v. Wen Hong Jiang, No. 01-06-00255-CV (Tex.App.- Houston [1st Dist.] Aug. 9, 2007)(Opinion on rehearing by Justice Keyes)(jury verdict reversed, breach of contract, elements of contact, fraud) (Before Justices Nuchia, Keyes and Higley)
Appeal from 190th District Court of Harris County
Trial court judge: Hon. Jennifer Elrod
Appellant's Attorneys: Morris Tabak, Jamal A. Asafi
Appellee's Attorney: Kevin D. Jewell

MEMORANDUM OPINION ON REHEARING BY JUSTICE EVELYN KEYES

We issued our opinion and judgment in this case on May 3, 2007. Jiang filed a motion for rehearing on June 18, 2007. We deny Jiang's motion for rehearing. However, our prior opinion and judgment of May 3, 2007 are vacated, set aside, and annulled, and this opinion and judgment are issued in their stead.


Appellant, Shaoguang He, appeals from a judgment rendered upon a jury's award of damages for breach of contract and fraud in favor of appellee, Wen Hong Jiang. In two issues, He argues that (1) the statute of frauds bars Jiang's recovery and (2) the evidence is legally insufficient to support the judgment.

We reverse and render.

Facts and Procedural History

He and Jiang first met each other in 2001 in Houston. Sometime thereafter, He and Jiang entered into an agreement.

According to He, Jiang approached him about doing some investment work for her. He agreed, testifying that Jiang had agreed to pay him $100,000 per year for his work. At the end of one year, Jiang refused to pay He for his work because she had not yet made any profits on her investments, but she agreed that she would pay him at the end of the following year for two years' work. At the end of two years, however, Jiang did not pay He for his work.

According to Jiang's testimony, she and He had entered into an agreement whereby He would borrow money from Jiang, make interest payments at specified intervals, and ultimately return the principal to Jiang.

From December 2001 through July 2002, Jiang made seven payments to He pursuant to their alleged agreement totaling $453,000. Of this, $200,000 was given to He directly; $100,000 was wired to a company named De Li Industries; and $153,000 was wired to another company named Guanging Honda, of which He is a shareholder. Of the $200,000 sent to He directly, the transfer of $150,000 is memorialized in two writings (1) signed by He and given to Jiang on June 21, 2002. The first writing ("first Agreement of Cooperation") provided:
Agreement of Cooperation

I received $50,000.00 (fifty thousand dollars) from Wenhong Jiang to purchase U.S. stocks. Stocks will be purchased through mutual consultation. I will return premium along with the interest to Wenhong Jiang when profits are realized.

Participant:

Shaoguang He (signature)
6/21/02


The second writing ("second Agreement of Cooperation") provided:

Agreement of Cooperation

I received $100,000.00 (one hundred dollars) [sic] from Wenhong Jiang. (The first part of $33,400.00 was received on 3/25/2002; the second part of $66,600.00 was received on 5/7/2002.) The term of the agreement is one year. I agree to pay the interest of $6000.00 every 70 days and there will be five times for such payments. Afterwards I will pay the interest by days. The date to start to calculate interest is 3/25/2002. The first pay date for the interest is 7/16/2002. I agree to return premium along with interest after one year.
By:
Shaoguang He (signature)
6/21/02


Ten days after Jiang's last payment to He, He executed a third writing: (2)

Calculation Methods
Profits of $100,000.00:
360 days per year:
Every 70 days, interest earned: $6,000.00
For one year (360 days), interest earned: $6,000.00 x 1 + $857.00 = $6,857.00
Profit of the first $33,400.00:
42 days x $33,400.00 x 0.000857 (profit per day of $1.00) = $1,202.00
Profit due to Wenhong Jiang by 7/16 is:
$6,000.00 + $1,202.00 = $7,202.00
Shaoguang He (signature)
7/15/02
(Note: based on the opinion of Wenhong Jiang, the profit of $7,202.00 will be put into the toy business, starting to calculate interest on $7,202.00 from 7/17. Starting to calculate interest on $153,000.00 from 7/12).

From January 2002 through January 2004, He made twelve payments to Jiang totaling $220,510. When Jiang did not pay He for the investment work he had done for her, He filed suit against Jiang alleging breach of contract. In her second amended original answer, Jiang alleged counterclaims for breach of contract and fraud.

In considering the evidence, the jury was required to consider several questions about the facts and to answer "yes" or "no." The jury found that He and Jiang had entered into an agreement but that only He had failed to comply with that agreement, and it awarded to Jiang $232,500 in damages. The jury also found that He had committed fraud against Jiang, and it awarded an additional $41,900 in direct and consequential damages.

On November 30, 2005, He filed a motion for judgment notwithstanding the verdict and a motion to disregard jury findings, arguing that "[a] directed verdict would have been proper in this case, because there is no evidence to support any of the answers to the jury questions. Accordingly, the jury's answers should be disregarded and a take nothing judgment on the entire case should be entered." On December 19, 2005, the trial court denied He's motions, and, based on the jury's findings, rendered (a) a take-nothing judgment against He and in favor of Jiang on He's breach of contract claim and (b) a judgment in favor of Jiang and against He on Jiang's breach of contract and fraud claims for $274,400.

On June 16, 2006, He filed a motion for a new trial alleging that Jiang had presented no evidence to support her causes of action against him. The record does not reflect whether the court ruled on this motion. Consequently, it was overruled by operation of law. See Tex. R. Civ. P. 329b(c).

Legal Sufficiency

In his second issue, He contends that the evidence is legally insufficient to support the trial court's judgment for breach of contract and fraud. In conducting a legal sufficiency review, we consider all the evidence in the light most favorable to the prevailing party. Scottsdale Ins. Co. v. Nat'l Emergency Servs., Inc., 175 S.W.3d 284, 300 (Tex. App.--Houston [1st Dist.] 2004, pet. denied). We indulge every reasonable inference in that party's favor and disregard all evidence and inferences to the contrary. Id. When, as here, the complaining party challenges the legal sufficiency of the evidence underlying an adverse finding on which he did not have the burden of proof, he must demonstrate that there is no evidence to support the finding. Id. If more than a scintilla of evidence supports the finding, the no-evidence challenge fails and the finding is legally sufficient. Id. (citing Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001)).

Breach of Contract

He argues that the evidence supporting the breach of contract portion of the judgment is insufficient because (1) no verbal or written agreement existed in which He agreed to pay $232,500 to Jiang and (2) Jiang testified that she had lost the $232,500 because she had met He, not because he had breached any agreement.

The elements of a breach of contract claim are that (1) a valid contract existed; (2) the plaintiff performed or tendered performance; (3) the defendant breached the contract; and (4) the plaintiff was damaged as a result of the breach. Hussong v. Schwan's Sales Enters., Inc., 896 S.W.2d 320, 326 (Tex. App.--Houston [1st Dist.] 1995, no writ). Whether a particular agreement constitutes a valid contract is generally a question of law. Farah v. Mafrige & Kormanik, P.C., 927 S.W.2d 663, 678 (Tex. App.--Houston [1st Dist.] 1996, no writ). A valid contract is formed by an offer, an acceptance, a meeting of the minds, each party's consent to the terms, and, in the case of a written contract, execution and delivery of the contract with the intent that it be mutual and binding. Baroid Equip., Inc. v. Odeco Drilling, Inc., 184 S.W.3d 1, 17 (Tex. App.--Houston [1st Dist.] 2005, pet. denied). However, if an alleged agreement is so indefinite such it is impossible for a court to fix the legal obligations and liabilities of the parties, the agreement cannot constitute an enforceable contract. Shaw v. Palmer, 197 S.W.3d 854, 856 (Tex. App.--Dallas 2006, pet. denied); accord T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992) ("In order to be legally binding, a contract must be sufficiently definite in its terms so that a court can understand what the promisor undertook.").

At trial, Jiang testified that He proposed an agreement whereby He would borrow money from Jiang, make interest payments at specified intervals, and ultimately return the principal to Jiang. Thus, according to her testimony, Jiang entered into a loan agreement with He.

In our original opinion, we held that Jiang did not present sufficient evidence from which the jury could have identified the material terms of the alleged contract because she did not present any evidence regarding how much money she had agreed to loan to He. In her motion for rehearing, Jiang challenges this finding, arguing that the amount she transferred to He--$453,000--was legally sufficient evidence of the amount she agreed to loan to him. In his response to Jiang's motion for rehearing, He concedes this point. He argues, however, that Jiang's breach of contract claim still fails because Jiang did not present legally sufficient evidence of the remaining elements of a contract to loan money.

In a contract to loan money, the material terms are generally (1) the amount to be loaned; (2) the maturity date of the loan; (3) the interest rate; and (4) the terms of repayment. Farah, 927 S.W.2d at 678. Regarding the $33,400 and $66,600 loaned to He and memorialized in the second Agreement of Cooperation, there is legally sufficient evidence of a contract to loan money. According to the agreement, He received a total of $100,000 from Jiang, which is evidence of the amount Jiang agreed to loan to He. The agreement also states, "I [He] agree to return premium along with interest after one year." Assuming that use of the word "premium" was a mistake in translation and that the parties intended it to read "principal," this language is evidence of the loan's maturity date. The agreement further states that He agrees to pay $6,000 in interest every 70 days and that, thereafter, he will "pay the interest by days"; that interest will begin to accrue on March 25, 2002; and that the first interest payment will be made on July 16, 2002. (3) This is evidence of the interest rate and the terms of repayment. We conclude, therefore, that there is legally sufficient evidence of a contract to loan money for the $100,000. See Scottsdale, 175 S.W.3d at 300.

Regarding the remaining five transfers of money to He and companies selected by He totaling $353,000, Jiang failed to present any evidence regarding the maturity dates, interest rates, and terms of repayment for these transfers or to show that they fell within the terms provided by the second Agreement of Cooperation. (4) Because all three terms are material in a contract to loan money and it is impossible to ascertain these terms, the alleged loan agreement or agreements for the amounts totaling $353,000 cannot constitute an enforceable contract. See Shaw, 197 S.W.3d at 856 (noting that if alleged agreement is so indefinite that it is impossible for court to fix legal obligations and liabilities of parties, agreement cannot constitute enforceable contract); Farah, 927 S.W.2d at 678 (setting out material terms of contract to loan money). We conclude, therefore, that Jiang failed to present legally sufficient evidence of one or more contracts to loan money for the remaining $353,000 that Jiang transferred to He and companies selected by He. See Scottsdale, 175 S.W.3d at 300.

In short, although the record shows that Jiang transferred $453,000 to He and companies selected by He, the evidence is sufficient only to show a contract to loan $100,000. The record also shows that from May 2002 to January 2004, He returned to Jiang $212,010, (5) $112,010 more than Jiang sent to He pursuant to the second Agreement of Cooperation. The evidence, therefore, is insufficient to show that Jiang was damaged by any breach of contract that He may have committed. See Hussong, 896 S.W.2d at 326. Because damages are an essential element of breach of contract, we conclude that the evidence is legally insufficient to establish Jiang's counterclaim for breach of contract. See id.

We sustain the breach of contract portion of He's second issue.

Fraud

He contends that the evidence supporting the fraud portion of the judgment is insufficient because Jiang testified that she had lost the $232,500 because she had met He, not because he made any false representations to her.

To recover on an action for fraud, the party must prove: (1) a material representation was made; (2) it was false; (3) when the speaker made the representation, he knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) the speaker made it with the intention that it should be acted upon by the party; (5) the party acted in reliance upon it; and (6) the party thereby suffered injury. Green Int'l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997).

Jiang did not produce evidence on all of the elements of fraud. At trial, Jiang testified that He proposed an agreement whereby He would borrow money from Jiang, make interest payments at specified intervals, and ultimately return the principal to Jiang. Jiang failed to present any evidence, however, that these statements were false. See Solis, 951 S.W.2d at 390. Rather, the record shows that from May 2002 to January 2004, He returned to Jiang $212,010, $112,010 more than Jiang sent to He pursuant to the second Agreement of Cooperation. Thus, the evidence is legally insufficient to establish the fraud portion of the judgment. See Scottsdale, 175 S.W.3d at 300.

We sustain the fraud portion of He's second issue. (6)

Conclusion

We reverse and render a take-nothing judgment against Jiang and in favor of He with respect to Jiang's counterclaims for breach of contract and fraud.

Evelyn V. Keyes
Justice

Panel consists of Justices Nuchia, Keyes, and Higley.

1. Both writings were written in Mandarin and translated into English for trial.
2. This writing was written in Mandarin, as well, and translated into English for trial.
3. The "Calculation Methods" writing memorialized on July 15, 2002 clearly refers to the calculation of the returns due to Jiang from He on this $100,000.
4. The first Agreement of Cooperation executed the same day as the second Agreement of Cooperation memorializes an agreement to transfer $50,000 from Jiang to He "to purchase U.S. stocks . . . through mutual consultation." It, therefore, appears to be a stock purchase agreement and not a loan. However, it also references the return of a "premium" and "interest" when "profits are realized," but it does not set any rate or amount of interest, any maturity date, or any terms of repayment. There is no written evidence of any of the terms under which the remaining $303,000 was transferred to He from Jiang. Nor did the testimony at trial elucidate these terms.
5. In January 2002, He transferred $3,500 to Jiang. Almost a month later, He transferred $5,000 to Jiang. Thus, the total amount of money Jiang received from He is $220,510.
6. Because our resolution of He's second issue is dispositive of his first issue, we need not reach his first issue. See Tex. R. App. P. 47.1.

Labor & Employment: Justice Elsa Alcala approves limitation of attorney's fee recovery in successful FLSA suit

Also holds that pre-judgement interest was properly denied because the Plaintiff was awarded liquidated damages as provided by the Fair Labor Standards Act (FLSA).

Donna H. Vernon v. Time Energy Systems of the South-West n/k/a CAD Distributors, Inc.
No. 01-No. 06-00009-CV (Tex.App.- Houston [1st Dist.] Aug. 9, 2007)(Opinion by Justice Alcala)(attorney's fees in FLSA suit)(Before Judge Price, Justices Alcala and Hanks)
Appeal from 234th District Court of Harris County

MEMORANDUM OPINION BY JUSTICE ELSA ALCALA

Appellant, Donna H. Vernon, appeals from a judgment rendered in her favor against CAC Distributors, Inc. f/k/a Time Energy Systems Southwest, appellees, for claims under the Fair Labor Standards Act ("FLSA"). See 29 U.S.C.S. §§ 201, 216 (LexisNexis 2007).

This appeal concerns only the trial court's rulings on attorney's fees and prejudgment interest; neither party challenges the amount awarded as compensation for unpaid overtime wages. In three issues, Vernon asserts that the trial court erred (1) by denying full recovery of reasonable and necessary attorney's fees; (2) by admitting into evidence the parties' settlement negotiations or, alternatively, by disallowing Vernon's settlement proposals as evidence while admitting into evidence CAC's settlement proposals; and (3) by denying prejudgment interest. We conclude that the trial court did not abuse its discretion by awarding attorney's fees in an amount less than that requested by Vernon's attorney; by admitting evidence in the bench trial about settlement negotiations for the limited purpose of determining the reasonableness of the number of hours worked by Vernon's attorney; or by denying prejudgment interest.

We also conclude that Vernon has not shown how she was harmed by the exclusion of the documentary settlement evidence that she offered because Vernon's attorney testified to the same matters that were in the excluded documents. We affirm. Background From May to September 2001, Vernon worked for CAC as a non-exempt clerical employee earning $11.50 per hour. Vernon claimed that when she worked more than 40 hours per week, she was not fully compensated for some of the additional hours. Vernon filed suit against CAC pursuant to section 216 of the FLSA claiming she was owed $1,897.50 in overtime wages. See 29 U.S.C.S. § 216.

In addition to her claim for overtime wages, Vernon sought attorney's fees. Vernon's counsel testified that he spent a total of 90 hours working on the case, that a reasonable rate for this type of work in the Houston community is $185 per hour, and that the "lodestar" amount determined from multiplying these two numbers was $16,650. Although it did not dispute that $185 per hour was a reasonable rate, CAC disputed the reasonableness of the number of hours worked by Vernon's attorney, asserting that Vernon's attorney behaved unreasonably in rejecting pretrial settlement offers by CAC that offered reasonable compensation to Vernon.

The documents admitted into evidence identified as Defendant's Exhibits 97-101 and Plaintiff's Exhibit 8 show that CAC made repeated settlement offers to Vernon.

•In February 2004, within 10 months of the filing of the case, CAC offered Vernon a $3,000 settlement. Vernon's response was a demand of $10,510. Vernon's demand included a calculation that the attorney had to that date worked 30 hours on the case at an hourly rate of $185 per hour, equaling $5,550 in attorney's fees.
•CAC countered three days later with a settlement offer of $5,000. Vernon responded with a demand of $8,000.
•CAC countered about a week later with a final settlement offer of $5,500, with a deadline to accept set the next day, but it was not accepted.
•About seven months later, on October 11, 2004, CAC again offered a settlement of $5,500 to Vernon, but it was not accepted.


Vernon's attorney testified that, prior to August 5, 2003, he "guessed" 30 hours were spent conferring with his client, filing the petition, filing a set of interrogatories, filing requests for production and for disclosure, and responding to defendant's request for disclosure. Between that date and February 20, 2004, Vernon's attorney testified that he worked an additional four to five hours to turn over two documents in response to CAC's initial discovery request. The trial court admitted into evidence Vernon's exhibit that described work he performed from March 10, 2004 through trial. After a bench trial, the trial court rendered judgment in favor of Vernon for the full amount of overtime wages she was due, $1,897.50, plus an additional $1,897.50 in liquidated damages. The trial court's judgment awarded $5,550 for attorney's fees, one-third of the $16,650 that was requested at trial by Vernon's attorney.

Although Vernon requested an award for prejudgment interest, the trial court's final judgment did not include an award for prejudgment interest. The failure to include prejudgment interest in the final judgment was the result of the trial court's order granting CAC's motion to modify the trial court's prior judgment that had included an award of $682 for prejudgment interest. See Tex. R. Civ. P. 329b(g). (1)

Amount of Award of Attorney Fees

In her first issue, Vernon asserts that the trial court erred by awarding an amount less than was testified to by her attorney because (A) "Courts have generally allowed full recovery of attorney's fees in FLSA cases," (B) no expert testimony was presented in opposition to Vernon's attorney's testimony, and (C) the evidence is factually insufficient to support the trial court's finding of fact that 30 hours was reasonable and necessary.

The FLSA mandates that reasonable and necessary attorney's fees and court costs be awarded a prevailing plaintiff in an FLSA action. See 29 U.S.C.S. § 216(b) ("The court in such action, shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action."); Guity v. C.C.I. Enter. Co., 54 S.W.3d 526, 528 (Tex. App.--Houston [1st Dist.] 2001, no pet.) (citing Purcell v. Seguin State Bank & Trust Co., 999 F.2d 950, 961 (5th Cir. 1993)).

To calculate reasonable attorney's fees in a case under the Labor Code, the fact finder should multiply the number of hours worked by the attorney's hourly rate. Guity, 54 S.W.3d at 528 (citing Purcell, 999 F.2d at 961). Both the number of hours and the hourly rate must be reasonable. Id. The resulting figure is called the "lodestar" amount; this can be adjusted upwards or downwards to account for the factors identified by the Fifth Circuit in Johnson v. Georgia Highway Express. (2) Id. at 529 (citing Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)). The lodestar amount is calculated before application of the Johnson factors. Id. at 528-529.

A. General Recovery of Attorney's Fees

Vernon asserts that the trial court was required to award the amount testified to by Vernon's attorney because "[c]ourts have generally allowed full recovery of attorney's fees in FLSA cases." (3) While Vernon cites several cases where the entirety of attorney's fees requested was awarded, CAC points to Cox v. Brookshire Grocery Co., where the Fifth Circuit affirmed a district court award of attorney's fees based upon a determination that only 80 of the 300 claimed hours of work were reasonable. 919 F.2d 354, 358 (5th Cir. 1990). As we note above, the standard that must be applied is the lodestar amount that is based on the reasonable number of hours worked multiplied by the reasonable hourly rate, with an adjustment upwards or downwards to account for the Johnson factors. See Purcell, 999 F.2d at 961.

B. Expert Testimony

Vernon also contends that the trial court was required to award the full amount of attorney's fees requested because CAC did not present contrary expert testimony. Although Vernon's attorney was the only witness who testified on the matter of attorney's fees and his testimony was not contradicted by an opposing expert, the trial court could have disregarded that testimony because the attorney was an interested witness on the matter of the amount of attorney's fees to be awarded by the trial court. See Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990) (citing Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904, 908 (1942) ("It is the general rule that the testimony of an interested witness, such as a party to the suit, though not contradicted, does no more than raise a fact issue to be determined by the [fact-finder].")). Moreover, CAC presented evidence contrary to Vernon's attorney's testimony that 90 hours of work were necessary to present the case by admitting documents that showed reasonable settlement offers that would have resulted in the need for fewer hours of work by the attorney, and thus, the evidence by Vernon's attorney was not uncontradicted or unimpeached. We note further that Vernon's attorney's testimony contained inconsistencies concerning the time he spent on the case and was not supported by written documentation for some of his claimed hours. (4) See id. (5) We are not persuaded by Vernon's contention that the trial court was required to award the full amount of attorney's fees requested by her attorney because CAC did not present contrary expert testimony. See id.

C. Factual Sufficiency of Evidence to Support Trial Court's Findings

Vernon contends that the trial court erred because it "did not make any findings of fact or conclusions of law as to why Plaintiff's requested attorney's fees were not reasonable and necessary." Vernon further contends that the district court's conclusion in its Findings of Fact and Conclusions of Law that "30 hours of work by Plaintiff's counsel were reasonable and necessary through trial and that $185.00/hour is a reasonable and necessary hourly rate for Plaintiff's counsel" was error because it was "not supported by the evidence and it was so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." See generally Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (cited by Vernon for standard of review for factual insufficiency claims).

1. No Findings of Fact and Conclusions of Law

Vernon provides no argument and cites to no authority indicating how the court erred in not including Findings of Fact or Conclusions of Law to explain "why" it determined that 30 hours of work by Plaintiff's counsel were reasonable and necessary through trial. The rules of appellate procedure require an appellant's brief to contain a "clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." See Tex. R. App. P. 38.1(h); Bradt v. West, 892 S.W.2d 56, 69 (Tex. App.--Houston [1st Dist.] 1994, writ denied) (holding that fact that brief contains authorities on conspiracy is not alone sufficient to comprise "argument" necessary to keep from waiving cause of action on appeal as both authorities and argument are required); Green v. Kaposta, 152 S.W.3d 839, 841 (Tex. App.--Dallas 2005, no pet.) (stating that "appellant's failure to present sufficient argument or authority to support an issue waives that issue on appeal."). This sub-issue is therefore waived. See Bradt, 892 S.W.2d at 69.

2. Finding not Supported by the Evidence

Vernon challenges the factual sufficiency of the evidence supporting the trial court's finding that "30 hours of work by Plaintiff's counsel were reasonable and necessary through trial and that $185.00/hour is a reasonable and necessary hourly rate for plaintiff's counsel." (6) When the appellate record contains a complete reporter's record, we review the trial court's findings of fact under the same standards for factual sufficiency that govern review of jury findings. (7) See Min v. Avila, 991 S.W.2d 495, 500 (Tex. App.--Houston [1st Dist.] 1999, no pet.). As fact finder, the trial court is the sole judge of the credibility of witnesses in a bench trial. See Murff v. Murff, 615 S.W.2d 696, 700 (Tex. 1981); Sw. Bell Media, Inc. v. Lyles, 825 S.W.2d 488, 493 (Tex. App.--Houston [1st Dist.] 1992, writ denied). An appellate court may not substitute its judgment for the trial court's assessment of witnesses' credibility in a bench trial. See In re W.E.R., 669 S.W.2d 716, 717 (Tex. 1984). In determining factual sufficiency, this court weighs all the evidence, both supporting and conflicting, and may set the finding aside only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Cain, 709 S.W.2d at 176; Comm'n of Contracts v. Arriba Ltd., 882 S.W.2d 576, 582 (Tex. App.--Houston [1st Dist.] 1994, no writ).

Vernon's attorney's testimony was not uncontested, and the evidence could lead reasonable minds to form different conclusions regarding reasonableness. Cross-examination by CAC and evidence in the record indicates that Vernon rejected CAC's first three settlement offers made within a two-week period for $3,000, $5,000, and $5,500. Thirty hours at $185.00 per hour, a total fee of $5,550, corresponds with Vernon's attorney's estimate of time worked on the case before CAC's first offer of settlement, admitted for the purpose of drawing "a line, or a mark in the time line, at which point [CAC] believed any attorney's fees beyond that were unreasonable." By awarding attorney's fees in an amount incurred only prior to the settlement offers, the court implicitly found to be unreasonable any time worked on the case beyond the offers. Moreover, as previously noted, the trial court was within its discretion to find not credible Vernon's attorney's testimony concerning the number of hours he claimed to have worked. Vernon's attorney's testimony included what he called a guess, failed to include written documentation of some of the claimed hours, and contained inconsistencies. See In re W.E.R., 669 S.W.2d at 717. We cannot overturn the finding when sufficient evidence to cause reasonable minds to disagree exists, as it does here. The finding is not contrary to the great weight and preponderance of the evidence, and thus is factually sufficient. See Cain, 709 S.W.2d at 176.
We hold that the trial court's finding of fact is supported by factually sufficient evidence.
(8) We overrule Vernon's first issue.

Admission of Settlement Proposal Evidence

In her second issue, Vernon contends that the trial court erred by allowing settlement proposals into evidence over her objections that the documents were not admissible due to lack of relevancy and to their prohibition by Rule 408 of the Rules of Evidence.

A. Relevancy

Relevant evidence is defined by Rule 401 of the Texas Rules of Evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. CAC's evidence relating to settlement proposals was offered as evidence that the 90 hours spent on the case by Vernon's counsel was not reasonable. Specifically, CAC asserted that its settlement offers were more than generous, as they were above the "cap" of liquidated damages imposed by the FLSA. (9) 29 U.S.C.S. § 216(a). Vernon's counsel testified that he rejected the offers because they did not cover "all of her damages," apparently referring to his attorney's fees. Vernon's unpaid wages were $1,897.50. Within 10 months of the filing of the case, CAC offered first a $3,000 settlement, then, three days later, a $5,000 offer, and finally, eight days later, a $5,500 settlement. According to Vernon's attorney, at the point the first of those settlement offers was made, he had worked 30 hours at an hourly rate of $185 per hour for a total of $5,550 in attorney's fees. The trial court stated, "The only reason I allowed the settlement discussions in was, in my mind, [CAC's attorney] was trying to draw a line, or mark in the time line, at which point he believed any attorney's fees beyond that were reasonable." In this bench trial in which a party challenged the reasonableness of the number of hours worked on the case by an attorney, we cannot conclude that the trial court abused its discretion by finding relevant the settlement offers on the matter of whether the attorney's claim of the number of hours he worked to present the case through trial was reasonable. See Tex. R. Evid. 401. (10)

B. Rule 408

Rule 408 states that an offer to settle or compromise a claim is not admissible to show liability, the validity of the claim, or the amount of the claim. Haney v. Purcell Co., 796 S.W.2d 782, 788 (Tex. App.--Houston [1st Dist.] 1990, writ denied). It does not require exclusion when the evidence is offered for another purpose. See Tex. R. Evid. 408. The evidence was offered for the "exclusive purpose," according to CAC, of aiding the court in determining the reasonableness of Vernon's attorney fees. We cannot conclude that the trial court abused its discretion by determining that Rule 408 does not prohibit the admission of the settlement negotiations on the limited matter of the reasonableness of the number of hours worked by the attorney. See id.

C. Conclusion

We hold that the trial court did not abuse its discretion by concluding that CAC's evidence of settlement negotiations was relevant to determining the amount of attorney fees that were reasonable and necessary. We further hold that the trial court did not abuse its discretion by determining that CAC's settlement evidence, because of the limited purpose for which it was offered, did not violate Rule 408. See Tex. R. Evid. 408. We overrule the portion of the second issue concerning the admission of CAC's evidence.

Exclusion of Vernon's Settlement Evidence

Within her second issue, Vernon alternatively contends that the trial court erred by refusing to admit her documentary evidence concerning negotiations. A trial court's decision whether to admit evidence is reviewed for abuse of discretion. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995) (exclusion of evidence committed to discretion of trial court). "Generally, exclusion of evidence is not reversible error unless the complaining party demonstrates that the whole case turns on the particular evidence excluded." Melendez v. Exxon Corp., 998 S.W.2d 266, 274 (Tex. App.--Houston [14th Dist.] 1999, no pet.) (citing Bean v. Baxter Healthcare Corp., 965 S.W.2d 656, 659 (Tex. App.--Houston [14th Dist.] 1998, no pet.); Shenandoah Assoc. v. J & K Properties, Inc., 741 S.W.2d 470, 490 (Tex. App.--Dallas 1987, writ denied)).

Vernon has not explained in her brief to this court how the trial court's failure to admit the documents that contained her settlement offers probably caused the rendition of an improper judgment. See Melendez, 998 S.W.2d at 274 (citing McCraw v. Maris, 828 S.W.2d 756, 757-58 (Tex. 1992)). The record shows that the trial court sustained CAC's objections on the grounds of relevancy to Vernon's Exhibits 9, 10, 11, and 12, and excluded those exhibits from evidence, but included the exhibits as part of the appellate record. The record also shows that Vernon's attorney testified without objection to the same facts that were included within the excluded exhibits. (11) We hold that the trial court's exclusion of the complained of exhibits is not reversible error because Vernon's attorney testified without objection to the same facts, and because the case does not turn on the particular evidence that was excluded from the trial. See Melendez, 998 S.W.2d at 274.

We overrule Vernon's second issue.

Prejudgment Interest in FLSA Claims

In her third issue, Vernon asserts that the trial court erred by denying prejudgment interest. We review a trial court's decision to award or deny prejudgment interest for abuse of discretion. See Purcell Constr. Inc. v. Welch, 17 S.W.3d 398, 402 (Tex. App.--Houston [1st Dist.] 2000, no pet.) (citing Marsh v. Marsh, 949 S.W.2d 734, 744 (Tex. App.--Houston [14th Dist.]1997, no writ)).

The FLSA permits the recovery of liquidated damages in an amount equal to the owed overtime pay. See 29 U.S.C.S. § 216(a). Prejudgment interest is already included in an award for liquidated damages. See Reeves v. Int'l. Tel. & Tel. Corp., 705 F.2d 750, 751 (5th Cir. 1983) (citing Brooklyn Savings Bank v. O'Neil, 324 U.S. 697, 715-16, 65 S. Ct. 895, 906 (1945) (stating that in suit under section 216 of the FLSA, interest is not recoverable as part of judgment because liquidated damages compensate for delay in payment of sums due)). Here, the trial court's award includes liquidated damages in an amount equal to the owed overtime pay, thereby effectively including compensation for prejudgment interest. See id.

Vernon contends that, except for the Fifth Circuit, "all other federal courts of appeals that have entertained this issue have ruled that prejudgment interest is available in an FLSA action." (12) Vernon correctly cites several cases wherein prejudgment interest was awarded in an FLSA action. See Donovan v. Sovereign Sec., Ltd., 726 F.2d 55, 58 (2d Cir. 1984) ("it is ordinarily an abuse of discretion not to include prejudgment interest in a back-pay award under the FLSA."); Brock v. Richardson, 812 F.2d 121, 127 (3d Cir. 1987) ("a back pay award under the Fair Labor Standards Act should be presumed to carry both post-judgment and pre-judgment interest unless the equities in a particular case require otherwise."); Secretary of Labor v. Daylight Dairy Prods., Inc., 779 F.2d 784, 789-790 (1st Cir. 1985) ("The employees have been wrongfully deprived of the use of the money; the interest payment fully compensates them for the wrong . . . . The district court in this case did not err in awarding pre-judgment and post-judgment interest to the employees."); Herman v. Hogar Praderas de Amor, Inc., 130 F. Supp. 2d 257, 268 (D. Puerto Rico 2001) (awarding prejudgment interest). However, except for Herman, none of these cases have awards for both prejudgment interest and liquidated damages, and in Herman, the court granted prejudgment interest only on issues for which liquidated damages were not awarded. Herman, 130 F. Supp. 2d at 268. The authority relied on by Vernon does not support the conclusion that the trial court abused its discretion by refusing to award prejudgment interest. We hold that the trial court did not abuse its discretion by denying an award for prejudgment interest under these circumstances that show that the trial court awarded liquidated damages at an amount equal to the unpaid wages, in addition to the award for the unpaid wages. See Reeves, 705 F.2d at 751. We overrule Vernon's third issue.

Conclusion

We affirm.

Elsa Alcala
Justice

Panel consists of Justices Alcala, Hanks, and Price. (13)

1. The remainder of the awards by the trial court concerning attorney's fees for an appeal to the Court of Appeals, a petition and appeal to the Texas Supreme Court, post-judgment interest, and costs of court have not been challenged on this appeal.
2. The Johnson factors include: (1) time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required; (4) the effect on other employment by the attorney; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorney; (10) the "undesirability" of the case; (11) the nature and length of the attorney's relationship with the client; and (12) awards in similar cases. Johnson v. Ga Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). If some of the factors are accounted for in the lodestar amount, they should not be considered when making adjustments. Shipes v. Trinity Indus., 987 F.2d 311, 320 (5th Cir. 1993).
3. Vernon cites several examples where a court has awarded all requested attorney's fees. See Burnley v. Short, 730 F.2d 136 (4th Cir. 1984); Bonnette v. California Health and Welfare Agency, 704 F.2d 1465 (9th Cir. 1983); Hodgson v. Miller Brewing Co., 457 F.2d 221 (7th Cir. 1972); Soler v. G & U, Inc., 801 F. Supp. 1056 (S.D.N.Y. 1992).
4. For example, Vernon's attorney testified as follows:
(1) He testified that he had worked 90 hours to prepare the case through trial. When asked to produce time sheets, he provided Exhibit 200, which totals approximately 86.5 hours of work since March 10, 2004. When asked if the hours on the sheet would add up to approximately 90, he said "it may be more, it may be less. . . . I have taken out the amount of time that I spent on the reinstatement and the amount of time that I spent on the collective action."
(2) He said he did not have records with him regarding time spent on the case prior to March 10, 2004, but, "guessed" he spent 30 hours prior to August 5, 2003, conferring with his client, filing the petition, filing a set of interrogatories, filing requests for production and for disclosure, and responding to a request for disclosure. He added 4-5 hours between that date and March 10, 2004 for responding to discovery requests. Vernon's attorney had no time sheets with him to support his oral testimony regarding his guess of 30 hours.
5. Having determined that the trial court could have rejected Vernon's attorney's testimony under an assessment of credibility, we do not reach the alternative assertion whether the trial court could have properly taken judicial notice of the reasonable and customary attorney's fees in determining the lodestar amount.
6. The trial court labeled this statement a conclusion of law. However, reasonableness of attorney's fees is properly an issue for the fact-finder, and thus a finding of fact. See Guity v. C.C.I. Enter. Co., 54 S.W.3d 526, 528 (Tex. App.--Houston [1st Dist.] 2001, no pet.).
7. Though the reporter's record here does not include the entire trial, it is complete regarding the topic of attorney's fees, the sole issue we are called upon to review in the trial court's findings of fact and conclusions of law.
8. On appeal, appellant has not challenged the trial court's award by asserting that it abused its discretion in determining the award of attorney's fees. We note that the federal courts generally review the amount of an award for attorney's fees under section 216(b) of the FLSA for an abuse of discretion. Hedrick v. Hercules, Inc., 658 F.2d 1088, 1097 (5th Cir. 1981) (citing Copper Liquor, Inc. v. Adolph Coors Co., 624 F.2d 575, 581 (5th Cir. 1980) (stating that attorney's fees under section 216(b) of the FLSA "must be upheld unless a clear abuse of discretion is found"); Johnson, 488 F.2d at 717 ("reasonableness of the award is to be judged by the abuse of discretion standard of review")). We note further that Vernon's counsel acknowledged at trial that the trial court must first determine the lodestar amount by taking "evidence of the number of hours and the hourly rate, which both must be reasonable." Vernon's trial counsel expressly represented to the trial court that he was not requesting that the court change the lodestar amount. However, Vernon's attorney testified about the Johnson factors "in the event the court may be inclined to do so one way or the other." Additionally, the record contains no findings of fact or conclusions of law concerning the Johnson factors.
9. "Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages." 29 U.S.C.S. § 216(a).
10. Vernon also asserts that the settlement offers were not admissible under the FLSA because no Johnson factor calls for the use of settlement negotiations in adjusting the lodestar amount up or down. However, the court did not use the Johnson factors to change the lodestar amount. See Johnson, 488 F.2d at 717-19.
11. Exhibit 9 states, "We might be able to settle this case." Vernon's attorney testified that on March 3 he left a message for CAC's attorney "on the voice mail concerning settlement." Exhibit 10 is a letter dated March 4, 2004 from CAC's attorney to Vernon's attorney stating, "All settlement offers previously conveyed by Defendant to Plaintiff in the captioned matter are hereby withdrawn and revoked." However, Vernon's attorney testified to this same fact by stating, "The following day, on March the 4th, you sent me correspondence, [CAC's attorney], indicating that all settlement offers by the defendant made up to that point in time had been withdrawn and revoked." Exhibit 11 is a letter from Vernon's attorney to CAC's attorney dated July 21, 2004 that states, "If the $5,500 settlement offer is not reinstated I see no opportunity for continuing the settlement dialogue." Vernon's attorney then said in the letter that he was willing to negotiate to an amount below $8,000. Vernon's attorney testified that "my colleague and I discussed settlement, and I attempted to settle the case." Vernon's attorney testified that "on July the 21st of 2004, I sent correspondence to Mr. Kimball as a follow-up to your phone conversation I had with him on that date. And I reminded him that in terms of settlement discussions as of March the 3rd, plaintiff was requesting $8,000, defendant $5,500[.]" Exhibit 12 is a letter from Vernon's attorney to CAC's attorney dated August 10, 2004 that states, "Plaintiff proposes a settlement by splitting the difference between her demand of $8,000.00 and the Defendant's offer of $5,500.00. If this settlement offer is not accepted and/or no response is made by Tuesday, August 17, 2004 this settlement will be withdrawn[.]" Vernon's attorney testified to the contents of Exhibit 12 by stating, "[O]n August the 10th of 2004, I sent a fax to the defendant offering to settle this case by splitting the difference between her demand of $8,000 and defendant's offer of $5,500." Vernon's attorney further testified, "I have asked the defendant to respond to the plaintiff's demand of $8,000 by August the 17th, 2004, and defendants have not responded[.]"
12. In Knowlton v. Greenwood Independent School District, the court said, "[T]his circuit has created a distinction between claims under 29 U.S.C. §216 (action to recover unpaid minimum wages, unpaid overtime compensation and liquidated damages), and §217 (injunction). Prejudgment interest is not available for the former; it may be awarded for the latter." 957 F.2d 1172, 1183 (5th Cir. 1992).
13. The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, sitting by assignment.

Justice Sam Nuchia writes that dismissal for lack of jurisdiction with prejudice was proper even though the merit were not reached

Lovell v. City of Baytown, Texas (Tex.App.- Houston [1st Dist.] Aug. 9, 2007, pet. filed Jan. 7, 2008)

Update: This case is being appealed to the Texas Supreme Court and has been docketed under case no. 07-1011

Keith Lowell; Ferrel J. Angelle; Bill Baylis; James Burgess; Robert Burlin; Thomas Carr; Gilbert Contreras; David Cox; Jeff Daigle; James T. Datillo, Sr.; Richard S. Domask; W.A. Domask; Daniel J. Dubiel; Ralph Feniello; Rodney Foster; Gaston Gagne; et al v. City of Baytown, Texas, No. 01-04-00548-CV (Tex.App.- Houston [1st Dist.] Aug. 9, 2007)(Opinion by Justice Nuchia)(fire fighter litigation, firefighters' suit against city)
Appeal from 215th District Court of Harris County
Trial court judge:
Hon. Levi J. Benton

OPINION BY JUSTICE SAM NUCHIA

Appellants, Keith Lowell, Jeff Daigle, Richard S. Domask, W.A. Domask, Ralph Finiello, Rodney Foster, Gaston Gagne, Derrick Gaskin, James Slate Hill, Marshall Hutton, Jared Jackson, James T. Lewis, Tracy E. Lindsey, Victor Medina, Mark Medrano, James Moss Jr., Charles E. Murrell, Scott Pritchett, Raul Rodriguez Jr., Shawn Russi, Brian W. Smith, John Wadley, Millard Williams Jr., Gary M. Willis Jr., Michael Wooster, James Burgess, Robert Burlin, Gilbert Contreras, David Cox, James T. Datillo Sr., Daniel J. Dubiel, Barry I. Hawkins, Walter Horton, Jackie Ickes, Paul Munoz, Mark Neal, Frederick D. Spencer, Ferrell J. Angelle, Bill Baylis, Thomas Carr, Ross L. Hargin, Richard Lopez, Robert T. McKay, Victor Medrano, George J. Restivo, Weylon Robinson, Timothy Rogers, Michael K. Ryan, Larry A. Troutman, and Marian Wyse, appeal the trial court's order dismissing appellants' claims for lack of subject-matter jurisdiction. Appellants, firefighters employed by appellee, City of Baytown (the City), sought declaratory and injunctive relief and back pay under the Civil Service Act. (1) The trial court granted the City's plea to the jurisdiction based on governmental immunity from suit. On appeal, appellants contend that their claims under the Declaratory Judgments Act (2) do not implicate governmental immunity and that the City's immunity from suit is waived as to claims under the Civil Service Act. Alternatively, appellants contend that, if it was appropriate for the trial court to dismiss appellant's claims, the trial court should not have dismissed them with prejudice. Finally, appellants contend that, because the trial court dismissed the case based only upon the City's claim of immunity from suit, this Court cannot affirm the dismissal on the basis that appellants' did not exhaust their administrative remedies.
We affirm in part and reverse in part and remand the case for further proceedings.


BACKGROUND

The City of Baytown firefighters are subject to the Civil Service Act (the Act), which provides that all firefighters within the same classification are entitled to the same base salary and to longevity or seniority pay. Tex. Loc. Gov't Code Ann. § 143.041 (Vernon Supp. 2006). In addition, the City and the firefighters have entered into a collective bargaining agreement (CBA) that provides for a "step plan" within the Fire Department's employment classifications. Under the Act, a firefighter begins to accrue seniority points on the date that he or she is hired. A department head may designate an employee from the next lower classification to fill a position temporarily in a higher classification. Id., § 143.038 (Vernon 1999). While filling the higher position, the employee is entitled to the base salary of the higher position as well as the employee's own longevity or seniority pay. Id. § 143.038(b).

Appellants sued the City, alleging that they had not been paid their seniority pay when serving temporarily in higher classifications. After the original petition and answer were filed, each party filed a motion for summary judgment. The City then filed a plea to the jurisdiction asserting that the City's governmental immunity from suit had not been waived and that appellants had not exhausted their administrative remedies. The trial court granted the City's plea and dismissed appellants' claims for lack of subject matter jurisdiction. The trial court denied appellants' motion for new trial, and appellants filed this appeal.

STANDARD OF REVIEW

A plea to the jurisdiction is appropriate whenever a governmental unit believes that the trial court lacks subject-matter jurisdiction. Tex. Dept. of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). When deciding whether to grant a plea to the jurisdiction, the trial court must look solely to the allegations in the petition. Liberty Mut. Ins. Co. v. Sharp, 874 S.W.2d 736,739 (Tex. App.--Austin 1994, writ denied). The plaintiff bears the burden of alleging facts affirmatively showing that the trial court has subject-matter jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). The court of appeals must take the allegations in the petition as true and construe them in favor of the pleader. Id. Whether a trial court has subject-matter jurisdiction is a question of law and is reviewed de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).

DISCUSSION

I. The City's Governmental Immunity From Suit

In their first issue, appellants contend that the trial court erred by ruling that the City's governmental immunity from suit deprived the court of subject-matter jurisdiction over claims brought under the Civil Service Act. Appellants argue that (1) the trial court has jurisdiction under the Declaratory Judgments Act to construe the Civil Service Act; (2) waiver of the City's immunity from claims for back pay brought under the Civil Service Act has been established through 60 years of case law;
(3) and (3) the common-law doctrine of waiver of immunity applies because, otherwise, portions of the Civil Service Act would be rendered meaningless.

1. Declaratory judgment and injunction

Appellants' lawsuit demands interpretation of sections 143.038 and 143.041of the Civil Service Act. See Tex. Local Gov't Code Ann. §§ 143.038, 143.041. The Declaratory Judgments Act provides, "A court of record within its jurisdiction has power to declare rights, status, and other legal relations whether or not further relief is or could be claimed." Tex. Civ. Prac. & Rem. Code Ann. § 37.003(a) (Vernon 1997). The court's authority extends to include the construction of statutes and ordinances. Id., § 37.004(a) (Vernon 1997). A suit to construe a statute or ordinance does not implicate governmental immunity from suit. Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). However, a party may not circumvent governmental immunity from suit by characterizing a suit for money damages as a declaratory-judgment action. Id. at 856.

The relief requested by appellants in their petition included (1) a declaration that the City's failure to pay the base salary of the higher-graded position along with a firefighter's own seniority pay violated Local Government Code sections 143.038 and 143.041 and (2) a permanent injunction prohibiting the City from future violation of the statutes. Because appellants' requested declaration and injunction do not require the payment of money damages, these claims do not implicate governmental immunity. Therefore, the trial court had jurisdiction to construe the relevant sections of the Civil Service Act and to enjoin the City from failing to pay appellants consistent with the trial court's construction of the Act. See Bell v. City of Grand Prairie, 221 S.W.3d 317, 325 (Tex. App.--Dallas 2007, no pet.) (concluding that, to extent appellants did not seek money damages, declaratory judgment action and injunction were not barred by governmental immunity).

2. Back pay

Appellants also requested an award of back pay and benefits lost as a result of the City's failure to pay appellants properly. Appellants contend that more than 60 years of case law establishes that back pay is recoverable under the Civil Service Act. Appellants direct us to numerous cases, including seven supreme court cases, (4) that affirm the right to be awarded back pay under the Civil Service Act. In response, the City argues that immunity was not an issue in the cases cited by appellant and that some of those cases involved a vested property interest, unlike the present case, which involves "mere 'wishes'" of appellants.
Because it is jurisdictional, immunity from suit is always an issue when a governmental entity is sued. Subject-matter jurisdiction cannot be waived and may be considered by an appellate court on its own motion. Tex. Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504, 517 (Tex. 1995). Therefore, the parties' failure to raise the issue of governmental immunity from suit cannot explain 60 years of silence on this issue. However, the supreme court has recently broken that silence in two cases brought under the Civil Service Act.

In City of Houston v. Williams, a group of retired firefighters sued to recover amounts they claimed were improperly withheld from lump-sum payments due them upon retirement as required by sections 143.115 and 143.116 of the Local Government Code. 216 S.W.3d 827, 828 (Tex. 2007). The court noted that "state law requires" that firefighters receive such payments. Id. The court of appeals had held that the "sue and be sued" language of the City's charter and the "plead and be impleaded" language of Local Government Code section 51.075 waived the City's immunity from suit. Id. Because this holding was inconsistent with Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006), the supreme court reversed the court of appeals' judgment. Id. The court also determined that appellants could not assert their claim for declaratory relief because the only injury alleged had already occurred and the only plausible remedy was money damages. Id. at 828-29. The court stated, "[I]f the sole purpose of such a declaration [to determine statutory rights] is to obtain a money judgment, immunity is not waived." Id. at 829. Because of the recent enactment of sections 271.151-.160 of the Local Government Code, which waives immunity from suit for certain contract claims, the court remanded the case to the trial court to consider the applicability of that statute. Id.

In City of Sweetwater v. Waddell, firefighters and their association sued the city for failure to promote Waddell and to pay firefighters as required by the Civil Service Act. 218 S.W.3d 80, 80 (Tex. 2007). The firefighters prayed for a declaration that the City's actions were unlawful, an order that Waddell be promoted, and money damages. Id. The trial court granted the City's plea to the jurisdiction, and the court of appeals reversed, holding that the "sue and be sued" language in the charter waived the City's immunity from suit. Id. at 80-81. The supreme court, holding that the court of appeals' decision was inconsistent with Tooke v. City of Mexia, reversed the court of appeals, stating, "On remand the trial court may consider, among other things, whether the City's immunity from suit is waived by sections 271.151-.160 of the Local Government Code or other statutory provisions." Id. at 81. The court did not address whether appellants' declaratory judgment claims had been properly brought.

We read Williams and Waddell to foreclose any award of money damages under the Civil Service Act unless the Legislature gives to firefighters and police officers, for whose benefit this act was passed, permission to sue.

3. Common-law waiver of immunity

Appellants propose that we apply the common-law doctrine that waiver of immunity from suit will be found if, without waiver, a statute would be rendered meaningless. Appellants cite, as an example of such waiver, City of LaPorte v. Barfield, 898 S.W.2d 288 (Tex. 1995). In Barfield, the supreme court stated:
The rule requiring a waiver of governmental immunity to be clear and unambiguous cannot be applied so rigidly that the almost certain intent of the Legislature is disregarded. Legislative intent remains the polestar of statutory construction. We will not read statutory language to be pointless if it is reasonably susceptible of another construction. If a statute leaves no reasonable doubt of its purpose, we will not require perfect clarity, even in determining whether governmental immunity has been waived. Id. at 292.


Using these principles, the court held that, even in the absence of specific waiver language, the intent of the Legislature was to waive governmental immunity from suit for violations of the Anti-Retaliation Law. (5) Id. at 296-97.

Appellants also cite, as an example of waiver by legislative intent, the Whistleblower Act, (6) which is discussed in Barfield. Id. at 296. Regarding that Act, which applies to state agencies and local governments, the court stated, "[I]ndeed, there would be no purpose for the Act at all if immunity were not waived." Id. Appellants argue that this reasoning applies equally to the Civil Service Act, which applies specifically to cities and their employment of firemen and police officers.

We find appellants' reasoning compelling. However, in our view, our supreme court has, in Waddell and Williams, specifically precluded the recovery of money damages in a lawsuit brought under the Civil Service Act. Thus, the court foreclosed the result urged by appellants. See Waddell, 218 S.W.3d at 81; Williams, 216 S.W.3d at 829.

4. Summary

We sustain appellants' first issue as it relates to their claims for declaratory judgment and injunction to the extent that they do not seek money damages.
We overrule appellants' first issue as it relates to their claims for back pay or other money damages.

II. Dismissal With Prejudice

In their second issue, appellants contend, in the alternative, that, if the trial court properly dismissed any of their claims for lack of jurisdiction, the court erred by dismissing their suit with prejudice. (7) Appellants argue that they should have been given the opportunity to seek legislative consent to sue, citing Li v. University of Texas Health Science Center, 984 S.W.2d 647 (Tex. App.--Houston [14th Dist.] 1998, pet. denied). We consider this issue only as it applies to appellants' claims for money damages.

The supreme court has recognized a conflict in the case law regarding whether a dismissal for lack of jurisdiction should be with or without prejudice. See Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004). In Sykes, the issue was whether the plaintiff's claims came within the waiver of the Tort Claims Act. Id. at 637. The supreme court held that the dismissal was with prejudice because it fully and finally adjudicated whether the claims came within the Tort Claims Act. Id. The court further explained:

If a plaintiff has been provided a reasonable opportunity to amend after a governmental entity files its plea to the jurisdiction, and the plaintiff's amended pleading still does not allege facts that would constitute a waiver of immunity, then the trial court should dismiss the plaintiff's action. Such a dismissal is with prejudice because a plaintiff should not be permitted to relitigate jurisdiction once that issue has been finally determined. Id. at 639. The plaintiff in Sykes amended her petition after the County filed its plea to the jurisdiction, but the amended petition did not bring the claims within the Tort Claims Act. Id.

In the present case, appellants did not amend their petition, but it was not for lack of a reasonable opportunity to do so. In response to the City's plea, they argued that immunity had been waived. In response to the City's response, appellants argued additional grounds for waiver. The order dismissing their lawsuit for lack of jurisdiction was signed over 11 months after the City's plea was filed. Thus, appellants had a reasonable opportunity to amend their petition.

We hold that the trial court did not err by dismissing appellants' claims for money damages with prejudice. Accordingly, we overrule appellants' second issue.

III. Exhaustion of Administrative Remedies

Appellants' third issue is a response in anticipation of a contention by the City that appellants' claims were properly dismissed because appellants did not exhaust their administrative remedies with respect to their claims for back pay.

As anticipated, the City contends that some of appellants' claims--those accruing before October 1, 2001--are subject to the grievance procedure of the Human Resources Policy Manual of the City, and that those claims accruing after that date--the effective date of the CBA--are subject to the grievance/arbitration procedure in the CBA. The City notes that the CBA procedure applies to complaints "involving the interpretation, application, or alleged violation of any provision of the CBA." Because we have concluded that the City's governmental immunity from suit precludes any recovery of money damages, we need not consider whether appellants were first required to submit such claims to a grievance or arbitration procedure. However, we must determine whether appellants were required to exhaust the remedies of the CBA before filing suit for a declaration of their rights under sections 143.038 and 143.041.

The CBA defines a grievance as "any dispute, claim, or complaint involving the interpretation, application or alleged violation of any provisions of this Agreement, not including matters reserved to management in the Management Rights clause in Article III or to disciplinary matters covered in Article XXIII." Appellants' claims in this case were based solely on the method used by the City in calculating appellants' pay when they were temporarily filling a higher-classified position. We have reviewed the CBA in the appellate record and find nothing relating to the payment of firefighters who are temporarily assigned to a higher-classified position.

Chapter 74 of the Local Government Code provides that a collective bargaining agreement may specifically preempt a state or local civil service provision. Tex. Local Gov't Code Ann. § 174.006 (Vernon 1999). Article XXII of the CBA, entitled "Compensation," establishes firefighters' base compensation and certificate pay and provides, "To the extent that any provision of this Article conflicts with or changes Chapter 143 of the Texas Local Government Code or any other applicable statute, . . . this Agreement shall supersede such provisions." However, base compensation and certificate pay are not the subject of sections 143.038 and 143.041 and, conversely, compensation while filling a higher-classified position is not the subject of CBA Article XXII.
Appellants' petition did not complain about the interpretation, application, or violation of any provision of the CBA. Therefore, appellants' complaints did not meet the CBA's definition of "grievance" and were not subject to its procedures. We hold that appellants' claims are not governed by the CBA and that, therefore, the administrative remedies within the CBA do not apply.

CONCLUSION

We affirm the trial court's judgment to the extent that it dismissed appellants' claims for money damages. We reverse the judgment of the trial court to the extent that it dismissed appellant's claims for declaratory and injunctive relief and remand the case to the court below for further proceedings.

Sam Nuchia
Justice

Panel consists of Justices Nuchia, Jennings, and Higley.

1. Tex. Local Gov't Code Ann. § 143.001-.089 (Vernon 1999 & Supp. 2006).
2. Tex. Civ. Prac. & Rem. Code Ann. § 37.001-.011 (Vernon 1997 & Supp. 2006.
3. After the Texas Supreme Court issued its opinion in Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006), appellants, in a supplemental brief, abandoned their claims, in their original brief, that the City's governmental immunity had been waived by the provision in the Local Government Code that home rule municipalities "may plead and be impleaded in any court," and the Baytown City Charter, which gives it the authority to "sue and be sued," to "contract and be contracted with," and to "implead and be impleaded in all courts." In Tooke, the court held that terms such as "sue and be sued" and "plead and be impleaded," standing alone, do not waive governmental liability. Id. at 342-43. In so holding, the court overruled Missouri Pacific R.R. Co. v. Brownsville Navigation Dist., 453 S.W.2d 812 (Tex. 1970).
4. See Tijerina v. City of Tyler, 846 S.W.2d 825 (Tex. 1992); Lee v. Downey, 842 S.W.2d 646 (Tex. 1992); Kierstead v. City of San Antonio, 643 S.W.2d 118 (Tex. 1982); Int'l Ass'n of Fire Fighters, Local Union No. 936 v. Townsend, 622 S.W.2d 562 (Tex. 1981); Duckett v. City of Houston, 495 S.W.2d 883 (Tex. 1973); Stauffer v. City of San Antonio, 344 S.W.2d 158 (Tex. 1961); and Morrison v. City of Fort Worth, 155 S.W.2d 908 (Tex. 1941).
5. Tex. Labor Code Ann. §§ 451.001-.003 (Vernon 2006).
6. Tex. Gov't Code Ann. §§ 554.001-.010 (Vernon 2004).
7. The order of dismissal does not recite that it is with prejudice. However, we deem the dismissal to be with prejudice. See Harris County v. Sykes, 136 S.W.3d 635, 636 (Tex. 2004) (holding that dismissal for lack of jurisdiction after opportunity, but failure, to cure is with prejudice).

Dangerous Premises: Falling-trash-can case (Urista III) decided on remand from the Texas Supreme Court - take-nothing judgment affirmed

Supreme Court addressed unavoidable accident instruction and found no reversible error; in its new opinion Houston's First Court of Appeals decides the remaining issues, and rejects appellant's challenges to jury selection, and to the trial court's entry of a take-nothing judgment based on a jury finding of no liability.

Urista, Rafael v. Bed, Bath & Beyond, Inc., No. 01-02-00150-CV (Tex.App.- Houston [1st Dist.] Aug. 9, 2007)(Opinion on remand by Justice Alcala)(PI law, unavoidable accident instruction)
(Before Justices Taft, Jennings and Alcala)
Appeal from 234th District Court of Harris County
Trial court judge: Hon. Hon. Reece Rondon
Appellant: URISTA, RAFAEL

Appellant's Attorneys: Thomas N. Thurlow, Jonathan Scott Stoger
Appellee: BED,BATH & BEYOND, INC.
Appellee's attorneys: Michael Phillips, Jonathan Christopher Kieschnick, Evelyn Ailts Derrington, Neal David Kieval

OPINION ON REMAND

Appellant, Rafael Urista, appeals from a take-nothing jury verdict entered against him in his personal injury suit against appellee, Bed, Bath, and Beyond, Inc. ("BBB"). In our opinion on rehearing, this Court reversed and remanded based on the trial court's submission of an unavoidable accident instruction. Urista v. Bed, Bath, & Beyond, Inc., 132 S.W.3d 517 (Tex. App.--Houston [1st Dist.] 2004) (Urista I) (Jennings, J., dissenting), rev'd by Bed, Bath, & Beyond, Inc. v. Urista, 211 S.W.3d 753 (Tex. 2006) (Urista II).

On BBB's petition for review of our decision, the Texas Supreme Court held that the trial court's submission of the unavoidable accident instruction was not reversible error and remanded the case for our consideration of Urista's remaining issues. Bed, Bath & Beyond, Inc. v. Urista, 211 S.W.3d 753, 759-60 (Tex. 2006).

In his remaining four issues that we address on remand, Urista asserts that the trial court committed reversible error during jury selection and that the jury's verdict was against the great weight and preponderance of the evidence.

We conclude that the trial court did not abuse its discretion by denying Urista's requested challenges for cause and that Urista failed to preserve for appeal his other challenges to the trial court's rulings during voir dire examination. We also conclude that the evidence is factually sufficient to uphold the jury's verdict. We affirm the judgment.

Background

On September 19, 1998, while shopping at a BBB store, Urista was hit in the head and knocked unconscious by plastic trash cans that fell from a store shelf. Reginald Neal, a store employee, was attempting to remove items from the shelf when the trash cans fell. Upon learning of the incident, David Traxler, a general manager with the store, approached Urista and filled out an accident report. Urista did not report serious injury at that time. Five weeks later, Urista claimed injury and photographed the store in preparation for his personal-injury lawsuit against BBB. Urista claimed that he suffered a degenerative back condition as a result of being hit by the trash cans.

At trial, the court allowed each of the attorneys the opportunity to question the panel during group voir dire, followed by individual voir dire of certain individuals who, during group voir dire, suggested they had an inability to follow the law. After a jury was seated, Urista presented evidence that Neal negligently caused the trash cans to fall. However, on cross-examination, Urista testified, among other things, that he had injured his back twice before: in 1995 in an automobile accident and in 1996 while at work. The jury found that BBB was not negligent, and the trial court entered a take-nothing judgment in favor of BBB.

Challenge for Cause Granted In his first issue, Urista asserts that the trial court erroneously granted the State's challenge for cause against prospective juror number 26. BBB contends that Urista waived this issue because he did not object to the trial court's exclusion of juror number 26.

In general, voir dire objections must be timely and plainly presented. Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 759 (Tex. 2006); see, e.g., Hallett v. Houston Nw. Med. Ctr., 689 S.W.2d 888, 889-90 (Tex. 1985) (holding that appellant waived trial court's error in failing to excuse juror for cause by not informing court before exercise of peremptory challenges that counsel lacked sufficient peremptory challenges to remove all objectionable jurors); see also Tex. R. App. P. 33.1(a)(1) (timely objection to trial court required to preserve complaint for appeal). We find no reported civil cases in which the appellant objected to the trial court's grant of his opponent's challenge for cause, but we note that this situation has arisen in the criminal context. See, e.g., Ortiz v. State, 93 S.W.3d 79, 88 (Tex. Crim. App. 2002); Purtell v. State, 761 S.W.2d 360, 365 (Tex. Crim. App. 1988). As the supreme court has relied on pronouncements of its "sister court" on issues of voir dire, so do we, too, look to the Court of Criminal Appeals for guidance here. See Hyundai Motor Co., 189 S.W.3d at 752-53; Cortez v. HCCI-San Antonio, Inc., 159 S.W.3d 87, 91 (Tex. 2005). In criminal cases, a party must object to a trial court's grant of a challenge for cause before he may complain of that action on appeal. Ortiz, 93 S.W.3d at 88; Purtell, 761 S.W.2d at 365. This principle also applies to the safeguarding of similar rights in civil cases.

The record shows that in granting BBB's challenge to juror number 26, the trial court stated, "These are the ones I'm excusing for cause. If you really disagree, you can talk to them and let me know . . . so those are the people that I am granting the motions to excuse for cause at this time." Just before the attorneys began making their peremptory strikes, the record shows that the trial court formally excused for cause juror number 26. At no point in the proceedings did Urista's attorney request that the trial court bring juror number 26 forward for individual questioning, nor did the attorney object to the trial court's ruling granting the challenge for cause of this juror. Because Urista did not object when the trial court granted BBB's challenge for cause, we hold that Urista has waived his complaint on appeal. See Tex. R. App. P. 33.1(a)(1).
We overrule Urista's first issue.

Challenges for Cause Denied

In his second issue, Urista asserts that the trial court erred in denying his motion to strike two prospective jurors, juror number 5, Mendez, and juror number 20, Ricketts, for cause. Urista used peremptory strikes on these jurors, resulting in two objectionable jurors serving on the jury.

A. Preservation of Error

BBB contends that Urista failed to preserve error concerning the trial court's denial of Urista's requested challenges for cause. To "preserve error when a challenge for cause is denied, a party must use a peremptory challenge against the veniremember involved, exhaust its remaining challenges, and notify the trial court that a specific objectionable veniremember will remain on the jury list." Cortez, 159 S.W.3d at 90-1 (citing Hallett, 689 S.W.2d at 890). "This ensures that 'the court is made aware that objectionable jurors will be chosen' while there is still time 'to determine if the party was in fact forced to take objectionable jurors.'" Id. at 91. The supreme court held in Cortez that error concerning the trial court's denial of a challenge for cause requested by Cortez was preserved under circumstances that showed that (1) Cortez "gave notice to the trial court before or after he delivered his strike list" in a manner such that the notice was "roughly contemporaneous," (2) Cortez's notice was given before the jury was seated, and (3) the trial court stated on the record "it's preserved." Id. Here, before the jury was seated and at about the same time that Urista turned in his strike list, Urista reasserted his objections to jurors 5 and 20, reporting to the court that he was using peremptory strikes on these jurors and identifying the objectionable jurors who would be seated on the jury due to the trial court's denial of the challenges for cause. We conclude that, under Cortez, error is preserved. See id.

B. Juror Bias or Prejudice

Urista contends that the trial court erred by failing to grant his challenge for cause on jurors 5 and 20 because they exhibited signs of bias or prejudice. We review a trial court's ruling on a challenge for cause for abuse of discretion. Id., 159 S.W.3d at 93.

Voir dire examination allows parties to expose possible improper juror biases that form the basis for disqualification and enables parties to intelligently exercise their peremptory strikes. Hyundai Motor Co., 189 S.W.3d at 749. "Bias, in its usual meaning, is an inclination toward one side of an issue rather than to the other, but to disqualify, it must appear that the state of mind of the juror leads to the natural inference that he will not or did not act with impartiality." Id. at 751. However, statements that reflect a juror's judgment about the facts of a case as presented, rather than an external unfair bias or prejudice, do not amount to a disqualifying bias. Id.; Cortez, 159 S.W.3d at 94. In Cortez, a nursing home negligence case, a juror, who had worked as an insurance adjuster, stated during voir dire that the defendants would be "starting out ahead," due to his personal bias against lawsuit abuse. Cortez, 159 S.W.3d at 90. The supreme court explained, however, that "the relevant inquiry is not where jurors start but where they are likely to end. An initial 'leaning' is not disqualifying if it represents skepticism rather than an unshakeable conviction." Id. at 94.

Challenges for cause do not turn on the formulaic use of specific words. Id. at 93. "Veniremembers may be disqualified even if they say they can be 'fair and impartial,' so long as the rest of the record shows they cannot. By the same token, veniremembers are not necessarily disqualified when they confess 'bias,' so long as the rest of the record shows it is not the case." Id.

During group voir dire, Urista's attorney discussed the specific evidence that he intended to introduce in the case, followed by a question to the jurors regarding how they would assess that
evidence. The record shows that Urista's attorney stated:

The evidence in this case, and I need to bring this up, is going to show you that in 1996, Mr. Urista had a work related injury while he worked in Austin. He hurt his low back. And it was a significant injury. Took him about 18 months to recover. You'll also hear in the case that for the next 14 months, Mr. Urista lived a normal life with this family. He had healed, until he walked into Bed, Bath & Beyond that day. And I'm going to bring you the evidence about the 1996 injury. We're going to talk about it at length, the medical care and so forth. But is there anybody that [sic] thinks that you would have difficulty knowing he had a prior injury, although he recovered from it, would have difficulty knowing he had an injury that dealt with the same part of his body? Raise those hands up.

Jurors numbers 5 and 20 responded to this inquiry.

1. Responses by Juror Number 5

Juror number 5 said during the group voir dire, "Well, since he got a prior incident, and here goes another incident--I don't know . . . if he went to trial for the other one also, I would have to hear all the evidence." Juror number 5 said that since Urista's attorney told her that Urista had a prior injury, it would make it difficult for for her "to judge it equally and fairly." During individual questions of juror 5, the juror initially related that she would hold Urista to "a greater burden of proof than what the law says in a civil case" and that Urista would have a "higher burden" to prove more than what the law required. However, upon further questions by BBB's attorney and the trial court, juror 5 said that she "would follow what the Court says the law is," she would base her verdict on the law as given to her by the Court, she would "sit fairly," and "evaluate the facts of the case."

2. Responses by Juror Number 20

During group voir dire, juror number 20 responded to Urista's attorney's question by agreeing with counsel that "[p]reponderance is out the window." Upon individual questioning, juror number 20 acknowledged that "without having heard anything from the stand, Mr. Phillips and Bed, Bath & Beyond" are "slightly" ahead, and that it was "not even." When Urista's attorney said, "Nothing in the world is going to change to make it even, is it, no matter what anybody says," the juror responded "No." During the trial court's questioning, juror number 20 said that the reason that she was "weighted in favor of the defendant" was "solely because the plaintiff has said that there was a back injury in the same part of the body." Juror number 20 said that she "would be able to wait and hear the evidence in the case and be fair to both sides."

3. Analysis

Although jurors 5 and 20 initially said they would have difficulty judging the case equally and fairly, those statements were in response to Urista's attorney's questions presenting the actual facts in the case, which is not a proper ground for disqualification because a party is entitled to a fair jury, not to a favorable jury. See Hyundai Motor Co., 189 S.W.3d at 749-50; Cortez, 159 S.W.3d at 94. As the trial court expressed when denying Urista's challenge for cause to number 20, Urista's claim of bias or prejudice was similar to asking a juror, "would you be prejudiced against my client because my client ran a red light and got in an accident?" The jurors reported a willingness to listen to the evidence, fairly evaluate the facts in the case, and apply the law as given by the judge. We conclude that the trial court did not abuse its discretion by denying Urista's challenges for cause of jurors 5 and 20 because the record fails to show any disqualifying external bias or prejudice. See Cortez, 159 S.W.3d at 91; see also Hyundai Motor Co., 189 S.W.3d at 751. We overrule Urista's second issue.

Limitation of Individual Voir Dire

In his third issue, Urista contends that the trial court erred in denying him the opportunity to further question prospective jurors 29, 32, and 33 regarding their ability to award mental anguish damages. These jurors were part of the group voir dire, but were not individually questioned by the attorneys. Urista complains that the trial court reversed its decision to allow individual questioning of these three prospective jurors after the court had related that it would allow individual questioning of jurors. Although Urista's attorney was allowed to question many of the prospective jurors individually, the trial court did not allow him to question these three jurors individually.

To preserve a complaint that a trial court improperly restricted voir dire, a party must alert the trial court as to the specific manner in which it intends to pursue the inquiry. Hyundai Motor Co., 189 S.W.3d at 758 (error waived by party's failure to "frame additional inquiries or convey to the trial court that the thrust of any remaining questions would be different from the single one presented for a ruling."). The court explained that to preserve error, the trial court must be given the "opportunity to cure any error, obviating the need for later appellate review, and further [allow] an appellate court to examine the trial court's decision in context to determine whether error exists, and if so, whether harm resulted." Id. "Thus, the Court traditionally has adhered strictly to the principle that voir dire objections must be timely and plainly presented." Id. at 759.

During voir dire of the group of prospective jurors, Urista's attorney questioned the panel concerning mental anguish, by asking "Is there anybody that is philosophically opposed to awarding someone damages for anything like mental anguish . . . ?" and by asking whether the jurors "would have trouble following the Court's instructions." The record shows that jurors 8, 11, 16, and 21 responded to this question. The record does not include any response to this question concerning mental anguish damages by the three jurors that Urista complains of here, prospective jurors 29, 32, and 33.

The trial court individually brought prospective jurors 29, 32, and 33 to the bench and the court questioned each of the jurors, but did not allow the attorneys to ask any further questions of the individual jurors. The court inquired of each juror whether there was any reason that the juror would not be able to listen to the instructions about the law and be fair to both sides in the case. Each juror reported that he or she could follow the law and be fair to both sides in the case.
Urista's attorney requested the opportunity to individually question the three jurors because "they said they could not award money for mental anguish," but the court responded to the request by stating, "I don't think that's a proper characterization of what they said." The trial court also said that "after we're done," Urista's attorney would be allowed to "make a record" concerning the trial court's refusal to allow individual questioning of the jurors. After the trial court ruled on all the challenges for cause, Urista's attorney stated, "I'm sorry, Judge, I do have a couple of things I would like to put on the record. Does the Court want me to do that after the jury is let go?" The trial court responded in the affirmative. While the jury was in recess and before he began making his peremptory strikes, Urista's attorney objected to the trial court's refusal to allow individual voir dire of the three jurors because he had relied on the trial court's earlier representation that it would be allowed. Urista's attorney said that had he known the trial court would not be allowing the individual voir dire, he would have further explored biases and prejudices of these three jurors while conducting voir dire of the group.

In his objections to the trial court's refusal to allow the individual voir dire of these three jurors, Urista's attorney said that he was "not able to ask the questions that [he] needed to ask in order to present them" and that he was "denied the opportunity to go into some areas due to the Court's instructions." After confirming that Urista had made all the objections he wished to make, the trial court stated,

The Court will note for the record that counsel has mischaracterized the instructions given to counsel, both on the record and off the record regarding voir dire. And the Court afforded the parties 30 minutes to conduct voir dire and, then, to move for grounds for disqualification. And I did inform counsel that they would be able to have [venire members] approach the Bench, so they could follow-up on specific areas, which have already been covered, not so that they could have free reign to do additional voir dire. And also mention to counsel that he spent a significant time arguing the facts of the case and arguing the law, as opposed to asking questions. Also for the record, that counsel has not suggested or put on the record, prior to me making this ruling, any specific questions which he was denied the opportunity to ask. Therefore, I'm overruling the objection.

To preserve error from the denial of the opportunity to conduct voir dire, Urista had the burden to make a record to show the specific manner in which he intended to pursue his inquiry. See Hyundai Motor Co., 189 S.W.3d at 758. When group voir dire on the subject matter complained of on appeal has been allowed, error is not preserved unless counsel identifies the specific areas of inquiry he wishes to pursue during individual voir dire. See id. The trial court allowed voir dire about mental anguish damages, and these jurors did not respond. See id. We hold that because Urista failed to plainly present an objection to the trial court that included the specific areas of inquiry he wished to pursue, he failed to preserve any error for our review. See id. We overrule Urista's third issue.

Factual Sufficiency

In his fifth issue, Urista challenges the factual sufficiency of the evidence supporting the jury's finding that BBB was not liable for Urista's injury. Urista had the burden of proof at trial. Therefore, to prevail on appeal, Urista must show that the adverse finding is against the great weight and preponderance of the evidence. Dow Chemical Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). We must consider and weigh all of the evidence, and we will set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Id.; see Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). In doing so, we must "detail the evidence relevant to the issue" and "state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict." Id.; see also Pool, 715 S.W.2d at 635.

However, we remain mindful that the jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). The jury may believe one witness and disbelieve another and resolve inconsistencies in any testimony. Id. We cannot substitute our opinion for that of the jury or determine that we would have weighed the evidence differently or reached a different conclusion. Hollander v. Capon, 853 S.W.2d 723, 726 (Tex. App.--Houston [1st Dist.] 1993, writ denied).

In support of his claims, Urista testified and presented testimony from David Traxler, BBB's corporate representative, who was also the manager of the store where Urista claims he was hit by a trash can, and from his wife, Geovanna Urista, who was shopping with Urista when the incident occurred.

Traxler testified as a representative of BBB. He said that an investigation was done, and that Urista was not negligent that day, nor was he aware of any evidence that any customers or other third parties caused the incident. He stated that trash cans fell that day, but so did other merchandise, and he said he did not know what hit Urista. Traxler "guessed" that a store employee knocked the trash cans down while standing on a ladder, working on the other side of the shelves. He said, "I believe that human error caused it. [A store employee] made a mistake and accidentally knocked it over. I don't think he was acting in an unsafe manner. I don't think he was doing anything to possibly cause an accident. I think he was aware of what he was doing and made a mistake." In addition, Traxler noted that by the time he arrived at the scene, the area had been cleaned up and Urista seemed "fine" and declined his offers of assistance.
Geovanna Urista, Rafael Urista's wife, testified that they went to BBB in the afternoon to shop for items for their new home. She said that she watched as two stacks of four or five hard plastic trash cans tumbled from the topmost shelf and landed on or near her husband, who was knocked unconscious for about two minutes. Upon awakening, Rafael complained of a headache and dizziness. Geovanna said that Urista wanted to leave the store, but they continued to walk around the store because she was concerned that he might "have a seizure or pass out on me." She also testified that Urista sustained scratches on his leg when broken dishes and glassware ripped his pants. Contrary to Traxler's testimony, Geovanna said that no BBB employee offered medical help or showed them to a place to sit down.

Rafael also testified at trial. He said that while looking at dishes at BBB with his young daughter, he was struck in the head, knocked unconscious "for some time." He testified that when he awoke laying on the floor, he was dizzy, disoriented, his head hurt, and he felt sore to the touch. He saw broken dishes around him when he got up, as well as trash cans, including one that had shattered into many pieces. He also recalled that his jeans were torn and that there was a slight amount of blood around the torn fabric. He said that he wanted to leave the store immediately, but upon his wife's urging, he agreed to stay for a short time to be certain he was "okay." He said he did not see Traxler until he had left the immediate area, while walking around the store.

On the other hand, and as the supreme court observed:

BBB chose to defend this case principally by attacking Urista's credibility. Urista and his wife were the only witnesses to his being struck in the head by the trash cans. And while this claim was not directly challenged by BBB, as it would have been difficult to do so in the absence of other witnesses, BBB did vigorously challenge Urista's claim to have been injured as a result of the incident. As we have already noted, the evidence at trial showed that after the incident occurred, Urista declined the manager's offer of assistance and did not report being knocked unconscious or that he had been injured. Moreover, he continued with his shopping before leaving the store. Urista also admitted that he had a pre-existing back injury, that he did not complain of pain immediately after the accident, that medical tests taken after the incident did not reveal any changes in Urista's back, and that Urista's medical records describing his injuries as work-related were changed by Urista's doctor, at the request of Urista's lawyer, to say the injuries were caused by the BBB accident. After hearing this evidence, the jury could quite reasonably have disbelieved Urista's testimony that he had actually been struck by the trash cans that fell off the shelf. In short, the jury could simply have concluded that Urista failed to prove that BBB was negligent. Urista II, 211 S.W.3d at 757-58.

Upon this record, "It is reasonable to conclude that Urista failed to carry his burden of proof." Id. at 757. Accordingly, we hold that the jury's verdict was not so against the great weight and preponderance of the evidence that it was clearly wrong and unjust. Dow Chem. Co., 46 S.W.3d at 242. We overrule Urista's fifth issue.

Conclusion

Having overruled all of Urista's remaining issues, we affirm the judgment of the trial court.

Elsa Alcala
Justice

Panel consists of Justices Taft, Jennings, and Alcala.