Opinion
No. 05-07-00118-CV
Opinion Filed January 8, 2008.
On Appeal from the 101st Judicial District Court Dallas County, Texas, Trial Court Cause No. 05-01902-E.
Before Justices, O'NEILL, RICHTER, and LANG.
MEMORANDUM OPINION
James Campbell appeals from a final judgment awarding him damages arising from an automobile collision with Jorge Bonilla. In two issues, Campbell challenges the jury findings as follows: (1) award of $400 for past medical care because it is "far less" than the amount Campbell claims was "conclusively established" at trial and (2) award of "zero" damages for past physical pain and mental anguish because there is no evidence to suggest that appellant's injuries were unaccompanied by "pain, suffering, and anguish." Additionally, Campbell argues the jury findings on both these issues are "against the great weight and preponderance of the evidence." In response, Bonilla contends: (1) Campbell has waived his complaint about the jury's award of damages because he did not file a motion for new trial raising these issues at the trial court and (2) there is some evidence in the record to support the jury's findings.
We agree that Campbell has waived his challenge to the jury's findings on damages and decide against Campbell on both issues. Because the issues in this appeal involve the application of well-settled principles of law, we issue this memorandum opinion. See Tex. R. App. P. 47.4. The judgment of the trial court is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Bonilla struck Campbell in a rear-end automobile collision with minimal damage to the automobiles. At the scene of the collision, Campbell told Bonilla he was "fine." Bonilla called Campbell on the evening of the incident to check on him and Campbell reported he was "fine." Two days after the collision, Campbell received medical treatment from his family doctor for back and neck pain and stiffness. The doctor prescribed muscle relaxers and told Campbell to "use a heating pad and do some light stretching" and return if he did not improve. Campbell also received treatment at a chiropractic clinic for his reports of back pain, neck pain, and headaches. In Campbell's suit against Bonilla to recover damages stemming from the collision, he claimed the medical expenses he incurred as a result of the collision totaled $4,991.77. Campbell also requested compensation for pain and suffering he claims to have experienced as a result of the collision.
When tried on the merits, the jury found Bonilla's negligence was the proximate cause of the collision. However, the jury awarded Campbell only $400.00 for past medical care. The jury awarded no damages to Campbell for past pain and mental anguish. The trial court entered judgment in accordance with the jury's verdict. Campbell filed a Motion to Disregard Jury Answer, but cancelled the hearing on the motion. The motion was overruled by operation of law. This appeal followed.
II. STANDARD OF REVIEW
When a party attacks the factual sufficiency of an adverse finding on an issue on which he has the burden of proof, he must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam) (citing Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983)). When reviewing a finding for factual sufficiency, the court of appeals must consider all of the evidence and will set aside a jury finding only if it is so contrary to the great weight and preponderance of the evidence that it is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam); Recognition Commc'ns, Inc. v. American Auto. Ass'n, 154 S.W.3d 878, 889 (Tex.App.-Dallas 2005, pet. denied). The fact finder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). The fact finder may believe one witness and disbelieve another and resolve inconsistencies in testimony. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). When enough evidence is before the fact finder that reasonable minds could differ on the meaning of the evidence or the inferences and conclusions to be drawn from the evidence, the court of appeals may not substitute its judgment for that of the fact finder. Herbert v. Herbert, 754 S.W.2d 141, 145 (Tex. 1988).
III. JURY FINDINGS ON DAMAGES
In two issues, Campbell challenges the jury findings as follows: (1) award of $400 for past medical care because it is "far less" than the amount Campbell claims was "conclusively established" at trial and (2) award of "zero" damages for past physical pain and mental anguish because there is no evidence to suggest that appellant's injuries were unaccompanied by "pain, suffering, and anguish." Additionally, Campbell argues the jury findings on both these issues are "against the great weight and preponderance of the evidence."
A. Applicable Law
The Texas Rules of Civil Procedure provide that a motion for new trial is a prerequisite to raise on appeal a complaint of factual sufficiency of the evidence to support a jury finding, a complaint that a jury finding is against the overwhelming weight of the evidence, and complaint of inadequacy or excessiveness of the damages found by the jury. Tex. R. Civ. P. 324(b)(2), (3), (4); Cecil v. Smith, 804 S.W.2d 509, 510 (Tex. 1991).
The Texas Rules of Appellate Procedure require an appellant's brief contain "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex. R. App. P. 38.1(h). The failure to adequately brief an issue waives that issue on appeal. See Huey v. Huey, 200 S.W.3d 851, 854 (Tex.App.-Dallas 2006, no pet.) ("Failure to cite applicable authority or provide substantive analysis waives issue on appeal."); McIntyre v. Wilson, 50 S.W.3d 674, 682 (Tex.App.-Dallas 2001, pet. denied) (appellant failed to adequately brief ground when he offered no legal analysis and cited only generally to law); see also Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284-85 (Tex. 1994).
B. Application of Law to the Facts
Campbell's complaints on appeal are of the type for which a motion for new trial is a prerequisite of appeal. See Tex. R. Civ. P. 324(b)(2), (3), (4); Cecil v. Smith, 804 S.W.2d 509, 510 (Tex. 1991). Campbell did not make a motion for new trial before the trial court. Accordingly, Campbell has not met the prerequisite for appeal on his complaints. See Tex. R. Civ. P. 324(b)(2), (3), (4). Therefore, Campbell has waived his complaints about the jury findings on damages. See id.; Cecil, 804 S.W.2d at 510.
At oral submission, Campbell argued that the prayer for general relief in the Motion to Disregard Jury Answer should be broadly construed to include a motion for new trial. However, Campbell did not raise this point in his briefing and was unable to cite any legal authority to support this assertion during oral argument. Accordingly, Campbell has waived his argument that the prayer for general relief in the Motion to Disregard Jury Answer should be construed to include a motion for new trial. See Huey, 200 S.W.3d at 854; McIntyre, 50 S.W.3d at 682. We decide against Campbell on both issues.
IV. CONCLUSION
The judgment of the trial court is affirmed.