Opinion
No. 05-02-00431-CV.
Opinion issued February 5, 2003.
Appeal from the 296th Judicial District Court, Collin County, Texas, Trial Court Cause No. 296-1703-99.
AFFIRMED.
Before Justices WHITTINGTON, RICHTER, and FRANCIS.
MEMORANDUM OPINION
In this personal injury case, Michael Bay appeals the jury's verdict finding him negligent and awarding Kyle Thorn $360,000 in damages. In five issues, Bay contends the evidence is legally and factually insufficient to support the jury's damage award for lost income, past and future medical expenses, and mental anguish; there is no competent evidence to support damages for lost future earning capacity; and the evidence supporting the damages for pain and physical impairment "was insufficient to support the jury's total damages award." Although Bay did not object to the broad form submission of the damages question, he did file a motion for new trial and a motion for judgment non obstante veredicto. The facts of this case are known by the parties, and we do not recite them in detail. Furthermore, because all issues are well settled, we issue this memorandum opinion. Tex.R.App.P. 47.4. We affirm the trial court's judgment.
An appellant who challenges the legal sufficiency of the evidence supporting an issue upon which he did not have the burden of proof must demonstrate on appeal that there is no evidence to support the adverse finding. Dallas County v. Holmes, 62 S.W.3d 326, 329 (Tex.App.-Dallas 2001, no pet.) (citing Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983)); Associated Tel. Dir. Publishers, Inc. v. Five D's Publ'g Co., 849 S.W.2d 894, 897 (Tex.App.-Austin 1993, no writ). When reviewing a no-evidence point, we consider only the evidence supporting the finding and disregard all evidence to the contrary. Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996); Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex. 1993).
When challenging the factual sufficiency of the evidence supporting an adverse finding upon which he did not have the burden of proof, the appellant must demonstrate that there is insufficient evidence to support the adverse finding. Dallas County, 62 S.W.3d at 329. In reviewing a factual sufficiency challenge, we consider and weigh all the evidence in support of and contrary to the finding; we should set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). This Court is not a fact finder and may not pass on the credibility of the witnesses or substitute its judgment for that of the trier of fact. Dallas County, 62 S.W.3d at 329; Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex.App.-Dallas 1986, writ ref'd n.r.e.). It is within the province of the jury to resolve matters which are necessarily speculative and not subject to precise mathematical calculations such as physical pain and mental anguish. GreenPoint Credit Corp. v. Perez, 75 S.W.3d 40, 45 (Tex.App.-San Antonio 2002, pet. filed); White v. Sullins, 917 S.W.2d 158, 162 (Tex.App.-Beaumont 1996, writ denied). When there is conflicting evidence, the jury's verdict is generally regarded as conclusive. Dallas County, 62 S.W.3d at 329.
Having conducted a thorough review of the evidence, we conclude there is legally and factually sufficient evidence to support the jury's verdict. See GreenPoint Credit, 75 S.W.3d at 45-46 (concluding evidence sufficient to support award of damages, submitted in broad form, for physical pain, mental anguish, medical care and disfigurement); Southwestern Bell Tel. Co. v. Garza, 58 S.W.3d 214, 236 (Tex.App.-Corpus Christi 2001, pet. filed) (concluding evidence sufficient to support jury finding of past mental anguish when Garza provided evidence showing that nature, duration, and severity of mental anguish created substantial disruption of daily routine); Gainsco County Mut. Ins. Co. v. Martinez, 27 S.W.3d 97, 108 (Tex.App.-San Antonio 2000, pet. dism'd by agr.) (concluding evidence was legally and factually sufficient to support award of damages for physical pain, loss of earning capacity, physical impairment, and medical care); ONI, Inc. v. Swift, 990 S.W.2d 500, 502 (Tex.App.-Austin 1999, no pet.) (concluding evidence was legally and factually sufficient to support damages for physical pain, injury, and medical expenses); Blankenship v. Mirick, 984 S.W.2d 771, 778 (Tex.App.-Waco 1999, pet. denied) (concluding evidence was both legally and factually sufficient to support award of damages for past and future impairment where doctor testified he told wife to limit her activities and husband and wife testified wife's physical activities were limited since the collision); Southwest Tex. Coors, Inc. v. Morales, 948 S.W.2d 948, 952 (Tex.App.-San Antonio 1997, no writ) (concluding evidence factually sufficient to support damages for physical pain, mental anguish, loss of earning capacity, physical impairment, and medical care); Am. W. Airlines, Inc. v. Tope, 935 S.W.2d 908, 916 (Tex.App.-El Paso 1996, no writ) (concluding sufficient evidence existed to support an award past mental anguish); see also Haryanto v. Saeed, 860 S.W.2d 913, 923 (Tex.App.-Houston [14th Dist.] 1993, writ denied) (holding that because translating damages into dollars is necessarily arbitrary process and in absence of objective guidelines, appellate court defers to jury's discretion in determining damages for pain and mental anguish). Because the jury's award of actual damages is supported by the evidence, we overrule Bay's five issues.
We affirm the trial court's judgment.