Court of Appeals of Texas, Dallas.

Patrick WADE, Appellant,

v.

The KROGER COMPANY, Appellee.

No. 05-92-01471-CV.

|

July 14, 1993.

Before BAKER, CHAPMAN and ROSENBERG, JJ.

O P I N I O N

ROSENBERG, Justice.

*1 Patrick Wade filed this lawsuit to recover damages he allegedly suffered as a result of being discriminated against by his former employer, The Kroger Company (Kroger), because he filed a workers’ compensation claim. The trial court rendered judgment on the jury’s verdict in favor of Kroger and ordered that Wade take nothing. Wade contends, in two points of error, that the trial court erred by (1) failing to award punitive damages found by the jury, and (2) rendering a take nothing judgment because the jury’s finding of no mental anguish damages was against the great weight and preponderance of the evidence. We hold that punitive damages cannot be awarded in the absence of a finding of actual damages. We also hold that the evidence supports the jury’s finding of no mental anguish damages. Therefore, we overrule both of Wade’s points and affirm the trial court’s judgment.

While employed by Kroger, Wade began to suffer from an arthritis-related condition. In October 1988, Wade told his manager that he intended to file a workers’ compensation claim, which was filed in November 1988. At trial, Wade testified to numerous alleged incidents of harassment and discrimination that occurred from the time he gave Kroger notice of his intent to file a workers’ compensation claim until he resigned seventeen months later. Wade alleged in his petition that Kroger’s conduct violated Article 8307c of the Texas Workers’ Compensation Act, which prohibits an employer from discharging or in any other manner discriminating against an employee because the employee filed a claim under the Workers’ Compensation Act. TEX. REV. CIV. STAT. ANN. art. 8307c, § 1 (Vernon Supp. 1993).

The jury found that Kroger wilfully discriminated against Wade in violation of article 8307c. The jury also found that $100,000 should be assessed against Kroger as punitive damages. The jury, however, did not find that Wade suffered any compensable damages for mental anguish, loss of insurance benefits, or loss of retirement benefits as a result of being discriminated against by Kroger. Both parties filed motions for judgment, and the trial court rendered judgment in favor of Kroger.

In his first point of error, Wade contends that the trial court erred in failing to render judgment for $100,000 in punitive damages. Wade argues that actual damages are not a prerequisite to recover punitive damages in an action for discrimination under Article 8307c of the Texas Workers’ Compensation Act. It is Wade’s position that a requirement of actual damages is contrary to the language and objectives of article 8307c, case law construing article 8307c, and public policy.

Article 8307c is silent on whether a finding that an employee suffered actual damages is necessary before punitive damages can be awarded. As a general rule, however, punitive damages cannot be awarded without a finding of actual damages. Doubleday & Co. v. Rogers, 674 S.W.2d 751, 753-54 (Tex. 1984). And one appellate court has held “that in a suit for wrongful discharge under article 8307c, a plaintiff must recover actual damages before she is entitled to recover exemplary damages.” Houston Northwest Med. Ctr. Survivor, Inc. v. King, 788 S.W.2d 179, 181-82 (Tex. App.-Houston [1st Dist.] 1990, no writ).

*2 While Wade argues that the supreme court’s holding in Azar Nut Co. v. Caille, 734 S.W.2d 667 (Tex. 1987) supports an award of punitive damages for wrongful discharge, the case does not address the failure to award actual damages. The sole issue before the supreme court was whether punitive damages are recoverable under article 8307c. Section 2 of article 8307c states that an employer who “violates any provision of Section 1 of this Act shall be liable for reasonable damages suffered by an employee as a result of the violation.”

TEX. REV. CIV. STAT. ANN. art. 8307c, § 2 (Vernon Supp. 1993). The supreme court interpreted the term “reasonable damages” to be an unrestricted standard that would allow punitive damages. Azar Nut, 734 S.W.2d at 669. But the jury in Azar Nut awarded the plaintiff actual damages for lost wages and insurance benefits, as well as punitive damages. Id. at 668. Therefore, the holding in Azar Nut does not create an exception to the well-established law that punitive damages cannot be awarded without a finding of actual damages.

Wade also directs us to Chapter 41 of the Texas Civil Practice & Remedies Code to support his position. Section 41.004(a) provides that punitive damages “may be awarded only if damages other than nominal damages are awarded.” TEX. CIV. PRAC. & REM. CODE ANN. § 41.004(a) (Vernon Supp. 1993). And Chapter 41 does not apply to “an action brought under the workers’ compensation laws of this state.” TEX. CIV. PRAC. & REM. CODE ANN. § 41.002(b)(3) (Vernon Supp. 1993). Wade argues that if the legislature intended an award of actual damages to be a prerequisite to the recovery of punitive damages under article 8307c, it would not have expressly excluded workers’ compensation actions from Chapter 41. That chapter, however, applies only “to an action in which a claimant seeks exemplary damages relating to a cause of action as defined by Section 33.001.” TEX. CIV. PRAC. & REM. CODE ANN. § 41.002(a) (Vernon Supp. 1993). And Section 33.001 addresses causes of action for negligence, strict liability, products liability, and breach of warranty. TEX. CIV. PRAC. & REM. CODE ANN. § 33.001 (Vernon 1986). Thus, Chapter 41 is not relevant to the cause before us. Further, allowing punitive damages without actual damages solely because Chapter 41 does not apply to workers’ compensation claims is not logical. Neither Chapter 41 nor its exclusion of worker’s compensation claims change the established law in Texas that punitive damages cannot be awarded in the absence of actual damages.

Next, Wade argues that the trial court’s refusal to award punitive damages is contrary to article 8307c’s objectives. He points out that the legislative purpose of article 8307c is to protect persons who are entitled to benefits under the Workers’ Compensation Act and to prevent them from being discharged or discriminated against when they seek to collect the benefits. Carnation Co. v. Borner, 610 S.W.2d 450, 453 (Tex. 1980). We recognize that the threat of punitive damages discourages employers from firing or harassing employees, and therefore advances the objectives of article 8307c. See Azar Nut, 734 S.W.2d at 669. However, if the legislature intended to dispense with the requirement of actual damages as a predicate to an award of punitive damages, the statute would have clearly stated that intention.

*3 Finally, Wade contends that public policy supports an award of punitive damages even if there is no finding of actual damages. He argues that an employer should not evade liability for wilful conduct simply because an employee is able to withstand the abuse without suffering any compensatory damages. Nevertheless, the Texas Supreme Court has consistently held that in cases where actual damages are recoverable, actual damages must be found prior to an award of punitive damages. See, e.g., Wright v. Gifford-Hill & Co., 725 S.W.2d 712, 714 (Tex. 1987); Bellefonte Underwriters Ins. Co. v. Brown, 704 S.W.2d 742, 745 (Tex. 1986); Doubleday & Co., 674 S.W.2d at 753-54. We are obligated to follow the law as stated by the supreme court. See Hancock v. Express One Int’l, Inc., 800 S.W.2d 634, 637 (Tex. App.-Dallas 1990, writ denied). Therefore, we will not create an exception to allow punitive damages absent a finding of actual damages in an article 8307c action. We overrule Wade’s first point of error.

In his second point of error, Wade attacks the jury’s finding that he suffered no mental anguish damages as a result of Kroger’s discriminatory conduct. Wade contends that the jury’s failure to find any compensable mental anguish damages was against the great weight and preponderance of the evidence.

In reviewing a challenge to a jury’s finding, we must consider and weigh all the evidence, and may set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). In considering points complaining of a jury’s failure to find a fact, the supreme court has admonished appellate courts to be mindful that the jury was not convinced by a preponderance of the evidence. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988). The jury is the sole judge of the witnesses’ credibility and the weight given their testimony. Pilkington v. Kornell, 822 S.W.2d 223, 230 (Tex. App.-Dallas 1991, writ denied). An appellate court may not reverse simply because it concludes that the evidence preponderates toward an affirmative answer. Herbert, 754 S.W.2d at 144.

The jury found that Wade suffered no damages for mental anguish as a result of Kroger’s discriminatory conduct. Wade argues that this finding is inconsistent with the jury’s finding that Kroger wilfully discriminated against him. Because he alleged Kroger’s actions caused him mental anguish, Wade asserts that the jurors’ failure to award mental anguish damages was unjust since they found the evidence on Kroger’s misconduct to be true.

Kroger responds that liability and damages were separate issues at trial. Therefore, a finding that Kroger violated article 8307c does not dictate an affirmative response on the question of damages. We agree. The jury was asked to determine if Kroger was the source of any compensable mental anguish damages. Kroger contends that any mental anguish Wade may have suffered was caused by circumstances unrelated to Kroger.

*4 Dr. Michael Rosenthal, a psychiatrist who treated Wade, testified that Wade suffered from depression due to an adjustment disorder. Dr. Rosenthal further testified that Kroger’s conduct was the primary cause of Wade’s adjustment disorder. Wade contends Dr. Rosenthal’s uncontroverted expert testimony presented overwhelming evidence of mental anguish damages, and the jury could not disregard such evidence and refuse to award damages. The jury, however, may believe or disregard all or any part of the testimony of any witness. Pilkington, 822 S.W.2d at 230. Therefore, the jury was not bound by Dr. Rosenthal’s opinion on the cause of Wade’s depression.

After reviewing all the evidence, we find there was evidence from which the jury could have determined that any mental anguish Wade suffered was not caused by Kroger’s conduct. The record contains evidence of other circumstances that were stressing Wade. Wade’s mother was ill, he was experiencing financial problems, and his wife was having an affair. Wade admitted that his wife’s infidelity caused him a substantial amount of mental anguish. Dr. Rosenthal also testified that Wade’s depression resulted, in part, from his concern about the arthritic condition of his hands.

We hold that the evidence showing Kroger to be the cause of Wade’s mental anguish does not so greatly outweigh the evidence supporting the jury’s finding as to make the verdict clearly wrong and unjust. We overrule Wade’s second point of error.

We affirm the trial court’s judgment.