A no‑evidence point will be sustained only if there is no more than a scintilla of evidence to prove the existence of a fact. Quantum Chem., 47 S.W.3

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NUMBER 13-05-086-CV



COURT OF APPEALS



THIRTEENTH DISTRICT OF TEXAS



CORPUS CHRISTI - EDINBURG







QUALITY DIALYSIS, INC., Appellant,



v.



HERBERT ADAMS, Appellee.







On appeal from the 240th District Court

of Fort Bend County, Texas.







MEMORANDUM OPINION



Before Chief Justice Valdez and Justices Rodriguez and Castillo

Memorandum Opinion by Justice Castillo



Appellant, Quality Dialysis, Inc. ("QD"), brings this appeal from a jury verdict finding that age was a motivating factor in the constructive discharge of appellee, Herbert Adams ("Adams"). Damages were awarded based upon back pay, health benefits, and the jury's finding of malice. We affirm.

I. Background

QD began in approximately 1996 as a company providing in-home kidney dialysis care. Adams was hired by QD in September 1996 at the age of 63. He began as temporary help and then was quickly hired by QD's owner, Cynthia Barclay, on a part-time basis. Shortly thereafter, he was hired on a full-time basis, with full-time benefits including health care. Although initially hired as a transport driver, Adams later became Distribution Manager. He was consistently given excellent reviews, receiving the highest possible scores in his 1998, 1999, and 2000 reviews. Adams received several raises, and was making $14.42 an hour by September 2000. Testimony of QD's marketing representative, Barbara Williams, reflected that Adams's work performance was "excellent." "Everybody raved about him; patients, doctors, anyone who came into contact with him." Evidence was undisputed that Adams was capable of performing all his job functions and that he did so in an exemplary manner.

Sometime between September 2000 and October 2001, Barclay's daughter, Genevieve (also known as Starr Estelle), was promoted to the position of office manager. She was then in her early 30's. In 2001, the company changed its health care provider. At a meeting in May 2001, the insurance representative commented that Adams might not be able to be insured because he was too old. Adams testified that others at the meeting laughed at the comment. It is undisputed that Adams and his wife were subsequently accepted on the new insurance plan.

In August 2001, Adams was involved in a hit-and-run accident for which he was not at fault. Williams testified that after this accident, in the fall of 2001, she was in Genevieve's office along with Barclay when Genevieve stated that Adams was getting too old and "we needed to push him out of there." Adams testified that "after the accident, things started going downhill for me."

In October 2001, Marian Wilson, Adams's immediate supervisor, was instructed by Genevieve to inform Adams that his hours were being reduced from forty to thirty hours per week, and his pay was being reduced from $14.42 to $14.00 per hour. Any questions were to be directed to Genevieve. Wilson told Adams in early November of the reductions; the reason given to Adams was a declining patient census. However, at trial Genevieve could neither identify the exact number of patients at that time nor the extent of any decline in census.[1] Because Adams's hours were reduced, his health coverage was also terminated. He discovered this when he presented his card at a pharmacy to purchase medication for his wife. Later, he noticed QD was no longer making deductions for his share of the insurance.

At the time of Adams's reductions, QD had two full-time and one-part-time employee drivers; Adams was the only employee, however, for whom hours and pay were reduced. None of the later-hired younger drivers, whom Adams supervised, received any such reductions. Adams requested that his hours be increased back to thirty-two hours per week so that he could maintain health insurance, but that request was denied. Adams determined that he could not pay his bills on the resulting salary and gave two weeks' notice. He did not look for new employment while he remained an employee with QD. After a disagreement over his entitlement to some vacation time, Adams ceased his employment with QD. He found new employment approximately two weeks later, at a lesser hourly salary but with full-time hours and attendant benefits. Adams claims he had no choice but to quit, having been "forced out." Adams's last day was December 4, 2001.

Later in December 2001, QD hired a replacement driver at full-time status for forty hours per week. The new hire was in his early thirties. The new hire, Williams Bassett, did not work out and approximately six weeks later, Barclay called Adams to ask if he would like to come back to work; she needed help because QD had secured a new contract with the Harris County Hospital District. There was no evidence as to the hours, wages, or other terms that would have been offered. Adams declined. At trial, Adams testified that he had been QD's longest-term employee in a company with high turnover, and he felt he had helped to build the company and had always done his job well. He felt "used" and "forced out," and had no desire to return to where he had been treated "so hostile." He did not feel he would be welcomed back.

Adams filed an age discrimination claim with the Equal Employment Opportunity Commission ("EEOC") and with the Texas Commission on Human Rights ("TCHR"). The EEOC issued a right to sue letter which reflected that it had found "reasonable cause to believe that violations of the statute(s) occurred with respect to some or all of the matters alleged in the charge." The TCHR also issued a right to sue letter, and Adams subsequently brought suit alleging violations of the Texas statute. Both these letters were included in evidence to the jury.

The jury returned a verdict finding that age was a motivating factor in QD's decision to discharge Adams. It awarded Adams $30,339 as damages for back pay and employment benefits. The jury also found that QD had acted with malice (by clear and convincing evidence) and awarded Adams $30,339 in exemplary damages.

II. Issues on Appeal

QD brings four issues on appeal: (1) there is no evidence to support the jury's finding that QD discharged Adams due to his age; (2) in the alternative, the finding is against the great weight and preponderance of the evidence; (3) the finding of malice is against the great weight and preponderance of the evidence; and (4) the award of exemplary damages is excessive. As sub-issues under the first two issues, QD argues that the trial court erred in (a) overruling its motion for directed verdict, and (b) overruling its motion for "judgment J.N.O.V." As sub-issues relating to the finding of malice, QD argues that the trial court erred in (a) admitting certain opinion testimony of Adams, (b) admitting hearsay evidence of statements allegedly made by an independent insurance agent, and (c) overruling QD's objection to including the malice and exemplary damages questions in the jury charge.

III. Standard of Review

1. Legal and Factual Sufficiency

We address legal-sufficiency challenges as either "no-evidence" or "matter-of-law" issues. Gooch v. Am. Sling Co., 902 S.W.2d 181, 183-84 (Tex. App.BFort Worth 1995, no writ). We analyze the issue as a "no-evidence" challenge when, as here, the party complaining on appeal did not bear the burden of proof at trial. Id.

When reviewing facts, the

. . . final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair‑minded people to reach the verdict under review. Whether a reviewing court begins by considering all the evidence or only the evidence supporting the verdict, legal‑sufficiency review in the proper light must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not.



City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We will review the evidence "in the light most favorable to the verdict, disregarding all contrary evidence that a reasonable jury could have disbelieved." Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005) (per curiam). If the evidence presented at trial would permit reasonable and fair-minded people to differ in their conclusions, then jurors must be allowed to do so. Keller, 168 S.W.3d at 822. The trier-of-fact, whether the trial court or the jury, remains the sole judge of the credibility of the witnesses and the weight to give their testimony. Id. at 819. It may choose to believe one witness and disbelieve another, and a reviewing court cannot impose its own opinions to the contrary. Id. at 822. "A reviewing court cannot substitute its judgment for that of the trier-of-fact, so long as the evidence falls within this zone of reasonable disagreement." Id. "The court must consider evidence in the light most favorable to the verdict, and indulge every reasonable inference that would support it. But if the evidence allows of only one inference, neither jurors nor the reviewing court may disregard it." Id.

When reviewing factual insufficiency complaints, this Court considers, weighs, and examines all evidence which supports or undermines the finding. Golden Eagle Archery v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). The finding is set aside only if the evidence standing alone is too weak to support the finding or the finding is so against the overwhelming weight of the evidence as to be manifestly unjust and clearly wrong. Id.

IV. Analysis

A. Sufficiency of Evidence to Support Jury's Finding

that Discharge was Motivated by Age



Jury question number one inquired whether age was a motivating factor in QD's decision to discharge Herbert Adams, as defined. The question included the following instructions:

An employee is considered to have been discharged when an employer makes conditions so intolerable that a reasonable person in the employee's position would have felt compelled to resign;



A "motivating factor" in an employment decision is a reason for making the decision at the time it was made. There may be more than one motivating factor for an employment decision.

QD argues that the evidence is neither legally nor factually sufficient to support the jury's finding that Adams's discharge was motivated by age.

Adams's claim of age discrimination was brought under section 21.051 of the Texas Commission on Human Rights Act ("TCHRA"). Tex. Lab. Code Ann. ' 21.051 (Vernon 1996). The legislature drafted the TCHRA to "correlate state law with federal law in the area of discrimination in employment." M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 24 (Tex. 2000); Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 485 (Tex. 1991). In adhering to the legislative intent, Texas courts look to the pertinent federal law in interpreting the relevant provisions of the TCHRA. M.D. Anderson, 28 S.W.3d at 24; Gold v. Exxon Corp., 960 S.W.2d 378, 380 (Tex. App.BHouston [14th Dist.] 1998, no pet.) (citing DeMoranville v. Specialty Retailers, Inc., 933 S.W.2d 490, 492 (Tex. 1996); Trico Tech. Corp. v. Rodriguez, 907 S.W.2d 650, 652‑53 (Tex. App.BCorpus Christi 1995, no writ); Farrington v. Sysco Food Servs., Inc., 865 S.W.2d 247, 251 (Tex. App.BHouston [1st Dist.] 1993, writ denied)).

Under the TCHRA, an unlawful employment practice is shown if the plaintiff establishes that age was a motivating factor, even if other factors also motivated the practice. Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 481 (Tex. 2001). In order to establish a prima facie case of age discrimination under the TCHRA, a plaintiff must prove that he (1) is a member of a protected class, (2) was discharged, (3) was qualified for the position from which he was discharged, and (4) was either replaced by someone outside the protected class, replaced by someone younger, or was otherwise discharged because of his age. Machinchick v. PB Power, Inc., 398 F.3d 345, 356 (5th Cir. 2005) (citing Russo v. Smith Int'l, Inc., 93 S.W.3d 428, 435 (Tex. App.BHouston [14th Dist.] 2002, pet. denied)). A plaintiff may rely on circumstantial or direct evidence to make the requisite proof. Kokes v. Angelina College, 148 S.W.3d 384, 392 (Tex. App.BBeaumont 2004, no pet.).

In a discrimination suit, constructive discharge may satisfy the discharge element of the claim. Passons v. Univ. of Tex., 969 S.W.2d 560, 562 (Tex. App.BAustin 1998, no pet.). Constructive discharge occurs when an employer makes conditions so intolerable that the employee reasonably feels compelled to resign. Id. To argue constructive discharge, it follows that the employee must actually resign his employment. See Winters v. Chubb & Son, Inc., 132 S.W.3d 568, 575 (Tex. App.BHouston [14th Dist.] 2004, no pet.).

A burden-shifting analysis applies in discrimination cases. M.D. Anderson, 28 S.W.3d at 24 (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)). Once the plaintiff establishes a prima facie case, the "burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the disparate treatment." Winters, 132 S.W.3d at 575 (citing Kokes, 148 S.W3d at 391). Where the employer claims that the termination was part of a reduction in force, the employee makes out a prima facie case of age discrimination by tendering evidence, circumstantial or direct, from which a fact finder might reasonably conclude the employer intended to discriminate in reaching its decision. Gold, 960 S.W.2d at 381. If the employer comes forward with nondiscriminatory reasons for the employment decision, the plaintiff is then "required to show either 1) the reasons were not true but, rather, were a pretext for discrimination, or 2) even if the reasons were true, another motivating factor was . . . age." Kokes, 138 S.W.3d at 393.[2] Expressions may be "direct evidence" of motivation "when they are (1) made by the decision maker or one whose recommendation is sought by the decision maker, (2) related to the specific employment decision challenged, and (3) made close in time to the decision." Id. at 392 (citing Lo v. Fed. Deposit Ins. Corp., 846 F. Supp. 557, 564 (S.D. Tex. 1994)).

A no‑evidence point will be sustained only if there is no more than a scintilla of evidence to prove the existence of a fact. Quantum Chem., 47 S.W.3d at 481; General Motors Corp. v. Sanchez, 997 S.W.2d 584, 588 (Tex. 1999). We conclude Adams presented some evidence that QD's stated reasons for the dismissal were a pretext for age discrimination.

We similarly conclude that the jury finding was not against the great weight and preponderance of the evidence. When reviewing for factual sufficiency, a finding is set aside only if the evidence standing alone is too weak to support the finding or the finding is so against the overwhelming weight of the evidence as to be manifestly unjust and clearly wrong. Golden Eagle Archery, 116 S.W.3d at 761. At trial, Adams presented four witnesses, including himself. The only controverted testimony related to motivation and Genevieve's comment that Adams was getting too old and "we needed to push him out of there."

We remain mindful that the trier-of-fact remains the sole judge of the credibility of the witnesses and the weight to give their testimony. Keller, 168 S.W.3d at 819. It may choose to believe one witness and disbelieve another; we may not impose any opinions to the contrary or substitute our judgment for that of the jurors, "so long as the evidence falls within this zone of reasonable disagreement." Id. at 822. "We consider evidence in the light most favorable to the verdict, and indulge every reasonable inference that would support it." Id. We conclude that the evidence is factually sufficient to support the jury finding.

1. The Motion for Directed Verdict

As a sub-issue under its issues relating to sufficiency of the evidence, QD urges that the trial court erred in failing to grant its motion for directed verdict.

QD argues in its brief that the trial court had the duty to instruct a verdict because the evidence was insufficient as a matter of law to show the element of constructive discharge. Whether an employee would feel forced to resign is case and fact specific, but the following factors are relevant, singly or in combination: (1) demotion, (2) reduction in salary, (3) reduction in job responsibilities, (4) reassignment to menial or degrading work, (5) reassignment to work under a younger or less experienced/qualified supervisor, (6) badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation, or (7) offers of early retirement (or continued employment on terms less favorable than the employee's former status). Haley v. Alliance Compressor LLC, 391 F.3d 644, 649-50 (5th Cir. 2004) (citing Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001)).

At trial, QD's motion for directed verdict was brief and encompassed only the following:

The evidence has established, right through the plaintiff himself, that, one he did not mitigate damages for the first two weeks; secondarily, he resumed employment with the first application that he made with Humana Health Care Service; thirdly, he was re-offered his job at Quality Dialysis when Mr. Adams terminated his position, and he stated that he walked off the job. He said he was forced off the job, but, nevertheless, he could have maintained a cause of action through the Texas Commission or EEOC.[3] While being unemployed, he was re-tendered employment, through his own testimony, and he obtained another job. There are no damages nor causation to address for the jury, Your Honor.



None of the concerns raised in the foregoing motion address any of the factors to be considered in evaluating whether or not constructive discharge took place, and they do not conform to the complaint being made on appeal. Under rule 33.1 of the Texas Rules of Appellate Procedure, an appellant must make a timely objection, stating the specific grounds for the ruling sought, and receive a ruling from the trial court on that objection in order to preserve error for appellate review. Tex. R. App. P. 33.1; Wal‑Mart Stores, Inc. v. McKenzie, 997 S.W.2d 278, 280 (Tex. 1999). Even constitutional errors, such as due process complaints, are waived if not raised first in the trial court. See Birdo v. Ament, 814 S.W.2d 808, 811 (Tex. App.BWaco 1991, writ denied).

We conclude that QD did not preserve error on the question of constructive discharge vis-a-vis the motion for directed verdict on the basis set forth in its brief.[4]

2. Motion for Judgment Notwithstanding the Verdict

As a second sub-issue, QD contends the trial court erred in overruling its motion for judgment notwithstanding the verdict, urging that as a matter of law there was no evidence upon which the jury could rely for its finding of age discrimination. The standard of review for a trial court's denial of a motion for judgment notwithstanding the verdict is to determine whether the evidence conclusively proves a fact that establishes a party's right to a judgment as a matter of law. Oyster Creek Fin. Corp. v. Richwood Invs. II, Inc., 176 S.W.3d 307, 322 (Tex. App.BHouston [1st Dist.] 2004, pet. denied) (citing Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex. 1991)). If so, then the trial court erred in denying the motion for judgment notwithstanding the verdict. Id.

The record does not include any motion for judgment notwithstanding the verdict. However, QD did file a motion for new trial, in which it contended that (1) the evidence conclusively proved that Adams was not discharged, (2) age was not a motivating factor,[5] and (3) the jury finding was also against the great weight and preponderance of the evidence.

The standard of review for a trial court's denial of a motion for new trial is abuse of discretion and, absent manifest abuse of discretion, its action will not be disturbed on appeal. Equitable General Ins. Co. v. Yates, 684 S.W.2d 669, 670 (Tex. 1984) (citing Neunhoffer v. State, 440 S.W.2d 395, 397 (Tex. Civ. App.BSan Antonio 1969, writ ref'd n.r.e.)).[6] In reviewing a trial court decision under an abuse of discretion standard, we must determine whether the trial court acted without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). The exercise of discretion is within the sole province of the trial court, and an appellate court may not substitute its discretion for that of the trial judge. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex. 1985). An abuse of discretion occurs only when the trial court reaches a decision that is "so arbitrary and unreasonable as to amount to a clear and prejudicial error of law." Id. at 917. We will affirm the judgment of the trial court if that judgment can be upheld on any reasonable theory supported by the evidence. Ex parte E.E.H., 869 S.W.2d 496, 497-98 (Tex. App.BHouston [1st Dist.] 1993, writ denied); Harris County Dist. Attorney's Office v. Burns, 825 S.W.2d 198, 200 (Tex. App.BHouston [14th Dist.] 1992, writ denied). We consider only the evidence most favorable to the judgment, and if there is some evidence to support the judgment, we will affirm. State v. Knight, 813 S.W.2d 210, 211 (Tex. App.BHouston [14th Dist.] 1991, no writ).

We have already determined that the evidence was legally and factually sufficient to support the jury's finding. We reject QD's contention that the evidence "conclusively proved" that the jury's answer to question number one was "wrong." We also conclude there was no abuse of discretion in denying the motion for new trial. Accordingly, we overrule QD's issues one and two, and their respective sub-issues.

B. The Finding of Malice

In its third issue, QD contends that the jury's finding of malice is against the great weight and preponderance of the evidence. There is no contention that the jury was not properly instructed either in the burden of proof or in the definition of malice.

QD argues that the employer must be shown to have engaged in a discriminatory practice with malice or with reckless indifference to the rights of an aggrieved individual, and that this requires "subjective knowledge" on the part of the employer that it is engaged in discrimination. However, case law provides that "the terms 'malice' or 'reckless indifference' pertain to the employer's knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination." Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 535 (1999). An employer must at least discriminate in the face of a perceived risk that its actions will violate federal law to be liable in punitive damages. Id.

Malice is defined as ill will, evil motive, or gross indifference or reckless disregard of the rights of others, and may be established by direct or circumstantial evidence. Gren Indus., Inc. v. Brown, 2001 Tex. App.LEXIS 1190, at *16 (Tex. App.BDallas 2001) (designated as opinion) A plaintiff is not required to prove the defendant acted with personal spite, but instead that the defendant committed wrongful acts in reckless disregard of another's rights and with indifference as to whether that party would be injured. Id. Evidence of egregious or outrageous acts may serve as evidence supporting an inference of the requisite "evil motive." Kolstad, 527 U.S. at 538 (citing 1 T. Sedgwick, Measure of Damages '' 366, 368, pp. 528, 529 (8th ed. 1891) ("The allowance of exemplary damages depends upon the bad motive of the wrong‑doer as exhibited by his acts."); 2 J. Sutherland, Law of Damages ' 394, p. 1101 (3d ed. 1903) ("The spirit which actuated the wrong‑doer may doubtless be inferred from the circumstances surrounding the parties and the transaction.")).[7]

In a case involving similar issues of an individual approaching retirement age, with attendant concerns relating to medical costs and benefits, our sister court concluded that this awareness, coupled with issues of credibility of the witnesses, supported the theory that lay-offs would generate savings "on the costs associated with higher paid, long‑term employees and retirees. . . . The jury was within its power to question the veracity of USAA's evidence, and to conclude that USAA acted with malice." U.S. Auto. Ass'n v. Brite, 161 S.W.3d 566, 575 (Tex. App.BSan Antonio 2005, pet. filed). Here, the jury was similarly provided with evidence of alleged wrongful acts, and with evidence that challenged the credibility of QD representatives, from which it was entitled to infer malicious intent. Sufficient evidence existed to enable the jury, as the sole finder of fact and the sole judge of the credibility of the witnesses, to conclude that QD acted with malice. See Keller, 168 S.W.3d at 819, 822. We cannot conclude that the jury's finding was against the great weight and preponderance of the evidence.

1. Opinion Testimony of Adams

As a sub-issue related to the finding of malice, QD argues that the trial court erred in admitting certain opinion testimony of Adams, specifically Adams's statement that, "after the [hit-and-run] accident, things started going downhill for me." On appeal, QD argues that the trial court erred in permitting this opinion testimony because it was nothing more than speculation.

First, the admission and exclusion of evidence is committed to the trial court's sound discretion. Oyster Creek, 176 S.W.3d at 316; Moore v. Bank Midwest, N.A., 39 S.W.3d 395, 401 (Tex. App.BHouston [1st Dist.] 2001, pet. denied). We must uphold the trial court's evidentiary ruling if there is any legitimate basis for the ruling. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998) (citing State Bar of Tex. v. Evans, 774 S.W.2d 656, 658 n.5 (Tex. 1989)). Moreover, we will not reverse a trial court for an erroneous evidentiary ruling unless the error probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1; Malone, 972 S.W.2d at 43; see also Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989).

Secondly, to preserve error for appeal a party must have made a timely, specific objection at the earliest possible opportunity. Tex. R. App. P. 33.1; Oyster Creek, 176 S.W.3d at 316. Failure to object in a timely and specific manner during trial forfeits complaints about the admissibility of evidence. Oyster Creek, 176 S.W.3d at 316; Atlantic Richfield Co. v. Misty Prods., Inc., 820 S.W.2d 414, 421 (Tex. App.BHouston [14th Dist.] 1991, writ denied). Here, no objection was raised at trial to the statement made by Mr. Adams based on speculation. The exchange was as follows:

A: And he ran into the truck, and it was a hit and run.

Q: You talked to the officer about that; is that right?

A: Yes, I sure did.

Q: Okay. Do you think someone blamed you for causing that accident?

Counsel: I Object. No proper predicate being laid.

Court: What's the specific legal objection?

Counsel: It calls for speculation.

Court: Sustained.

Q: The reason you bring that upBhelp me understand. How do you think that plays into this?

Counsel: Your Honor, that's leading.

Court: Overruled. You can answer that question.

A: That plays into that because after the accident, things started going downhill for me.

Q: Mr. Adams, did you cause that accident?

A: No I did not.

Q: You weren't found at fault in it?

A: I wasn't at fault.

Q: The fact the accident occurred had nothing to do with your age?

A: Not anything to do with my age.



An objection based on speculation was raised to a preceding question ("Do you think someone blamed you for causing that accident?") and that objection was sustained. Adams was then asked, "How do you think that plays into this?" The only objection raised to this question, which was overruled, was "leading." Even if QD had raised a timely and proper objection, we conclude Adams could properly testify to his own perceptions, and the comment in issue was rationally based on his perception. See Tex. R. Evid. 701 (providing that the opinion of a lay‑witness is admissible if based on his perception and if his opinion helps in determining a fact in issue); Sierad v. Barnett, 164 S.W.3d 471, 483 (Tex. App.BDallas 2005, no pet.). Further, in light of other evidence tendered, we cannot conclude that the comment in question probably caused the rendition of an improper judgment. We conclude the trial court did not abuse its discretion in admitting Adams's opinion testimony, and we overrule QD's sub-issue on this point.

2. Hearsay Testimony

As a second sub-issue, QD claims that the trial court erred in admitting testimony of comments made by an insurance agent. The exchange between Adams and counsel was as follows:

Q: Now, you were in a meeting when the insurance representative we talked about came to a staff meeting, were you?

A: Yes, I was.

Q: Did he mention your age in that meeting?

A: He mentioned it afterB. . . He questioned me and saying, "Are you still here?"[8]

Q: Meaning were you still there from the time that he talked about Aetna, maybe, until you talked about the new area?

A: Right. From the time we got on Aetna and he left, I didn't see him any more until he came with United Health Care.

A: What, if anything, did he say about your age?

A: He say,"I don't believe you're going to be accepted, because you're too old."

Q: You're too old?

A: But, he said, he said, "Don't tell everybody I said that." Everybody laughed, because we was in a meeting.

A: Was Star Stell [sic] [Genevieve Barclay] in that meeting?

Q: Yeah. Everyone was there.

Q: Was she in the meeting when he said, "Don't tell anyone I said that?"

A: She was there. I don't know whether she heard it or not, but she was there.

Q: Did a lot of the people laugh? Did she hear them laughing?



Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Tex. R. Evid. 801(d); Sierad, 164 S.W.3d at 484. If the record discloses a legitimate basis for a trial court's evidentiary ruling, we uphold the ruling. Oyster Creek, 176 S.W.3d at 317; Malone, 972 S.W.2d at 43. However, here no objection was raised at trial on any basis to the testimony in issue, and therefore there was no evidentiary ruling. We conclude that QD failed to preserve error on this sub-issue for appeal. Tex. R. App. P. 33.1; Oyster Creek, 176 S.W.3d at 316. Further, in light of other evidence tendered, we cannot conclude that the testimony in question probably caused the rendition of an improper judgment.

3. Jury Charge Error

As a final sub-issue under the primary issue that the finding of malice was against the great weight and preponderance of the evidence, QD asserts that the trial court erred in including the malice and exemplary damages questions in the jury charge.

The test for preservation of error concerning the jury charge is whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling. See State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 240‑41 (Tex. 1992); Melendez v. Exxon Corp., 998 S.W.2d 266, 281 (Tex. App.BHouston [14th dist.] 1999, no pet.). The standard of review for alleged jury charge error is abuse of discretion. Tex. Dep't of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990); Rosell v. Cent. W. Motor Stages, Inc., 89 S.W.3d 643, 653 (Tex. App.BDallas 2002, pet. denied). To determine whether alleged jury charge error is reversible, we consider the parties' pleadings, the evidence presented at trial, and the charge in its entirety. See Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 663 (Tex. 1999). Error in the jury charge is similarly reversible only if it probably caused the rendition of an improper judgment or probably prevented the appellant from properly presenting the case on appeal. See Tex. R. App. P. 44.1(a); Timberwalk Apts. v. Cain, 972 S.W.2d 749, 756 (Tex. 1998).

At trial, during the charge conference and following discussion over the form of question number one (in which QD's counsel contended there was no evidence that Adams was discharged), QD participated in the following exchange:

Court: Any other objections to the form of the charge?

Counsel: We're going to object, Your Honor, to the exemplary damage.

Court: Just to the inclusion of that?

Counsel: Yes.

Court: That objection is overruled. Any other objections to the form or substance of the charge?

Counsel: No. The rest of it B it's out of the pattern jury instructions.



Clearly, at trial there was no objection to inclusion of the question on malice.[9] Because QD did not apprise the trial court of its complaint about inclusion of the question on malice during the charge conference and did not obtain a ruling, it did not preserve this complaint for appeal. Payne, 838 S.W.2d at 241.

Moreover, although QD argues on appeal that there was no admissible evidence that QD acted with malice, and that inclusion of the jury question was erroneous and probably caused the jury to improperly award exemplary damages, we have already determined the evidence was legally and factually sufficient to place the question before the jury and to sustain its finding. We overrule QD's third issue.

C. Exemplary Damages Award

QD's final issue on appeal is that the award of exemplary damages is excessive. Here, the exemplary damage award is equal to the amount of actual damages awarded.

We have already noted that an appellant waives any complaint about the trial court's judgment that is not timely raised. Tex. R. App. P. 53.2(f); Bunton v. Bentley, 153 S.W.3d 50, 53 (Tex. 2004); Johnson v. Lynaugh, 796 S.W.2d 705, 707 (Tex. 1990) ("If the matter complained of originated in the trial court, it should have been preserved for appellate review in the trial court"). No issue relating to the amount of the exemplary damages award was raised in the motion for new trial and error, if any, has not been preserved.

Even if the issue had been properly raised, the amount of such an award rests largely in the discretion of the jury and will not be set aside as excessive unless the amount is so large as to indicate that it is the result of passion, prejudice, or corruption, or that the evidence has been disregarded. Ethicon, Inc. v. Martinez, 835 S.W.2d 826, 835-36 (Tex. App.BAustin 1992, no pet.); Crutcher‑Rolfs‑Cummings, Inc. v. Ballard, 540 S.W.2d 380, 389 (Tex. Civ. App.BCorpus Christi 1976, writ ref'd n.r.e.). Whether a jury award is excessive is a question of fact. Alamo Nat'l Bank v. Kraus, 616 S.W.2d 908, 910 (Tex. 1981).

Exemplary damages must be reasonably proportioned to actual damages. Id. When reviewing an exemplary damage award, we consider (1) the nature of the wrong, (2) the character of the conduct involved, (3) the degree of culpability of the wrongdoer, (4) the situation and sensibilities of the parties concerned, and (5) the extent to which such conduct offends a public sense of justice and propriety. Id.[10]

We conclude the award of exemplary damages in this case is not excessive or the likely result of passion, prejudice, or corruption, or that the evidence has been disregarded. See Martinez, 835 S.W.2d at 835-36; Ballard, 540 S.W.2d at 389.[11] QD's fourth issue is overruled.

V. Conclusion

We affirm the trial court's judgment in all respects.



ERRLINDA CASTILLO

Justice



Memorandum Opinion delivered and filed

this the 8th day of June, 2006.









[1] When Adams was first hired, patient census was approximately five to six. By the time he left, QD's patient census averaged in the mid to high thirties. QD experienced a lot of growth in 1999 and 2000. Genevieve Barclay testified that QD tried to keep its patient load at a minimum of thirty-eight, and she believed it had been at either thirty, perhaps thirty-four or thirty-five patients in the fall of 2001, but was not certain. She also testified that QD was profitable and made money in 2001, 2002, and 2003.

[2] The employee has the burden of establishing a prima facie case of unlawful discrimination. Tex. Dep't of Human Servs. v. Hinds, 904 S.W.2d 629, 636 (Tex. 1995) (citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 428, 252-56 (1981)). The employer then has the burden of producing evidence of legitimate reasons for its actions. Id. The employee has the burden of rebutting this evidence. Id. While the burden of production shifts, the ultimate burden of persuasion remains on the employee. Id. Texas courts of appeals have adopted similar procedures in such cases. Id. (citing Adams v. Valley Fed. Credit Union, 848 S.W.2d 182, 185‑87 (Tex. App.BCorpus Christi 1992, writ denied) (jury in age discrimination case must be instructed on the shifting burdens prescribed by Burdine)).

[3] We note that while an issue was initially raised before the trial court that Adams had not timely filed his lawsuit, based upon the dates of his right to sue letters from the EEOC and the TCHR, there is no such issue on appeal. The right to sue letters are part of the record, and there is no contention that Adams failed to exhaust administrative remedies.

[4] Even if error had been preserved on the issue presented, we have already determined the evidence was legally sufficient to place the question of constructive discharge impliedly before the jury in the first question of the jury charge.

[5] QD argued in its motion for new trial that since Adams was hired when he was sixty-three years old and received salary increases during his tenure with QD, age could not have been a factor: "If age was a motivating factor Adams would not have been hired initially."

[6] The latitude of the trial court's discretion is addressed in rule 320 which provides that "[n]ew trials may be granted and judgment set aside for good cause, on motion or on the court's own motion on such terms as the court shall direct." Equitable General Ins. Co. v. Yates, 684 S.W.2d 669, 670 (Tex. 1984) (citing Tex. R. Civ. P. 320).

[7] See also Koehler v Sircovich, 269 S.W. 812, 818 (Tex. Civ. App.BGalveston 1925, no writ) ("The existence of an evil intent can seldom if ever be shown by direct evidence, and evidence of facts and circumstances from which it is reasonably inferable is sufficient to show its existence.").

[8] Adams was the only employee still with QD from when the same agent had come to speak about the prior insurance coverage.

[9] We acknowledge that in the motion for new trial, counsel argued that "the Court erred in overruling Defendant's Objection to the charge;" however, the record fails to include any such objection to question number 3.

[10] There is no set rule of ratio between the amount of actual and exemplary damages that will be considered reasonable. Alamo Nat'l Bank v. Kraus, 616 S.W.2d 908, 910 (Tex. 1981); Beacon Nat'l Ins. Co. v. Reynolds, 799 S.W.2d 390, 398 (Tex. App.BFort Worth 1990, writ denied); Aetna Cas. & Sur. Co. v. Joseph, 769 S.W.2d 603, 607 (Tex. App.BDallas 1989, no writ). The ratio of exemplary to actual damages here was 1 to 1. See Donnel v. Lara, 703 S.W.2d 257, 262 (Tex. App.BSan Antonio 1985, writ ref'd n.r.e.) (approving ratio of 2250 to 1); Beacon, 799 S.W.2d at 398 (approving ratio of 28 to 1); Wal Mart Stores, Inc. v. Kee, 743 S.W.2d 296, 298-99 (Tex. App.BTyler 1987, no writ) (approving ratio of 5.56 to 1).

[11] No issue has been raised contending that the award is unconstitutionally excessive. See BMW of N. Am. v. Gore, 517 U.S. 559, 574-75 (1996); Owens Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 45 (Tex. 1998).