Opinion
No. 05-16-00354-CV
05-03-2017
MARIA LUISA GUTIERREZ, Appellant v. CANDACE RENEE HADSELL, Appellee
On Appeal from the County Court at Law No. 5 Dallas County, Texas
Trial Court Cause No. CC-13-05902-E
MEMORANDUM OPINION
Before Justices Lang, Fillmore, and Schenck
Opinion by Justice Schenck
Maria Luisa Gutierrez appeals the trial court's judgment in her favor, urging that it awarded inadequate compensatory damages. She argues the evidence is factually insufficient to support the amount of medical expenses awarded her and the zero-damages award of past physical pain and mental anguish. We affirm.
FACTUAL & PROCEDURAL BACKGROUND
On January 19, 2013, Gutierrez drove a car involved in a multi-vehicle accident. She later filed suit against two other drivers, Luz Cordero Shepherd and Candace Renee Hadsell, for negligence. Before trial, Gutierrez and Shepherd reached a settlement and filed a motion requesting the trial court dismiss with prejudice Gutierrez's claim against Shepherd, which the trial court granted. At trial, Gutierrez argued Shepherd's, Gutierrez's, and Julius Dean Rivers's vehicles were all stopped one after the other in a single lane waiting for a truck in front of them to make a left turn when Hadsell collided with Shepherd's car, forcing Shepherd's car into Gutierrez's car, and forcing Gutierrez's car into Rivers's truck ahead of her.
After a trial on the merits, the jury returned a verdict finding Shepherd fifty percent negligent, Gutierrez thirty-five percent negligent, and Hadsell fifteen percent negligent. The jury awarded Gutierrez $3,833.24 in damages for medical expenses, but awarded her nothing for past physical pain and mental anguish, future pain and mental anguish, past physical impairment, and loss of earning capacity.
Gutierrez moved for a new trial, arguing among other things that the jury's award for medical expenses was not supported by factually sufficient evidence, the jury improperly reduced the medical expenses award by the negligence of both Gutierrez and Shepherd, and the jury's zero damages award for past physical pain and mental anguish was not supported by factually sufficient evidence. Hadsell responded to Gutierrez's motion for new trial, arguing it should be denied, and in the alternative requested a judgment notwithstanding the verdict awarding Gutierrez the full amount of medical expenses she sought at trial. The trial court denied Gutierrez's motion for new trial and entered a judgment notwithstanding the jury's verdict that ordered Hadsell to pay Gutierrez double the amount of medical expenses found by the jury and all costs of court. The final judgment also found Shepherd fifty percent negligent, Gutierrez thirty-five percent negligent, and Hadsell fifteen percent negligent. Gutierrez then filed this appeal.
DISCUSSION
I. Standard of Review
In reviewing a factual-sufficiency challenge to an adverse finding on which the party had the burden of proof, we determine whether 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). We consider all the evidence in the record pertinent to that finding and will set aside the judgment only if it so contrary to the overwhelming weight of the evidence that it is clearly wrong and unjust. Id. II. Sufficiency of Evidence to Support Award of Medical Expenses
In her first issue, Gutierrez argues the jury's award of $3,833.24 for past medical expenses was against the great weight and preponderance of the evidence. She contends she presented evidence that she had incurred $25,554.96. She urges that "the jury improperly reduced her medical expenses by eighty-five percent" based on the finding that Hadsell was fifteen percent negligent.
Under section 33.013 of the Texas Civil Practice and Remedies Code, Hadsell would be liable to Gutierrez "only for the percentage of damages found by the trier of fact equal to [her] percentage of responsibility." TEX. CIV. PRAC. & REM. CODE ANN. § 33.013(a) (West 2016). Gutierrez does not dispute the jury's liability finding that Hadsell was only fifteen percent negligent. Thus, had the jury awarded Gutierrez the full amount of medical expenses she alleges she established, $25,554.96, then the trial judge would have only awarded her fifteen percent of that amount, or $3,833.24, against Hadsell.
As noted above, the trial court entered a judgment notwithstanding the jury's verdict on past medical expenses, awarding Gutierrez $7,646.68. Therefore, the trial court's judgment awarded Gutierrez double the amount she would have recovered from Hadsell had the jury awarded the full amount she sought. We cannot conclude the complained-of error resulted in any harm to Gutierrez. See TEX. R. APP. P. 44.1(a)(1) ("No judgment may be reversed on appeal on the ground that the trial court made an error of law unless the court of appeals concludes that the error complained of probably caused the rendition of an improper judgment . . . ."). Accordingly, we overrule her first issue. III. Sufficiency of Evidence to Support Award of $0 for Past Physical Pain and Mental Anguish
In her second issue, Gutierrez argues the jury's award of $0 for her past physical pain and mental anguish was against the great weight and preponderance of the evidence.
A. Applicable Law
The jury generally has great discretion in considering evidence on the issue of damages. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). When there is uncontroverted, objective evidence of an injury and the causation of the injury has been established, appellate courts are more likely to overturn jury findings of no damages for past pain and mental anguish. Blizzard v. Nationwide Mut. Fire Ins. Co., 756 S.W.2d 801, 804-05 (Tex. App.—Dallas 1988, no writ). However, where the evidence of pain is conflicting, scant, or more subjective than objective, appellate courts are generally reluctant to determine a jury finding of no damages is contrary to the great weight and preponderance of the evidence. Id. at 805.
The mere fact of injury does not prove compensable pain and mental anguish. Id. For an undisputed injury that is less serious and accompanied only by subjective complaints of pain, a jury may reasonably believe that the injured party should be compensated for seeking enough medical care to ensure that the injury was not serious yet also conclude the injured party never suffered pain warranting a money award. Id.
B. Evidence of Past Physical Pain and Mental Anguish
Michael Gutierrez, Gutierrez's husband, testified as follows. On the day of the accident, Gutierrez called him crying, and when he arrived, she was screaming and trying to reach their six-year-old daughter who had been riding in the back seat. Soon after the accident, Gutierrez would wake up whenever she heard an ambulance passing by their house, and she would look for her daughter and get upset. Since the accident, Gutierrez had been afraid to drive. Mr. Gutierrez related that he and his wife dance in Aztec ceremonies, but Gutierrez stopped dancing after the accident and only since about the time of trial had begun dancing again. He stated that although his wife is not one to complain, since the accident, she has complained about the pain in her back and no longer cooks for the family like she did before the accident.
Gutierrez testified that immediately after the accident, she experienced pain in her neck and shoulders, did not want to move, and did not feel well at all. By the time she arrived at the emergency room, Gutierrez's head, neck, shoulders, and lower back hurt. Over the next week to two weeks after the accident, Gutierrez still had pain in her head, neck, shoulders, and lower back, and she began to feel pain in her left knee and wrist. Standing, sitting, or lying down for long periods of time caused her pain at the time of trial. Before the accident, Gutierrez participated in Zumba classes and Aztec traditional and cultural dancing multiple times a week. She has not resumed Zumba, and she does not participate in the Aztec dancing, which she stated was her "way of . . . praying." Since the accident, she relies on others to drive her, which makes her feel helpless.
In contrast with much of the testimony regarding Gutierrez's past physical pain and mental anguish is the following evidence. Gutierrez worked the entire week after the accident, and only missed two days of work the tenth and eleventh days following the accident. On cross-examination, she testified she did not have any cuts or bruises or broken bones after the accident. She admitted she got out of her car and walked around the scene of the accident before she went to the hospital. She went to the hospital after the accident and was released the same day. After her release from the hospital, she received massage and electrical shocks to treat her pain. She said no doctor has recommended surgery for her.
Gutierrez also submitted her medical records into evidence to support her claims for damages. The records of her hospital visit immediately after the accident indicate Gutierrez complained of pain in her scalp and back, but stated by the time she was released, there was no serious injury, at worst her symptoms were mild, and her symptoms were resolved. The hospital records note she had an "abnormal x-ray," though she was released the same day, as noted. Approximately nine days after the accident, Gutierrez visited the Injury Treatment Centers of Texas, where she was treated for about two months until March 27, 2013. During that time she was diagnosed with muscular injuries, shoulder sprain/strain, left knee "sprain/strain," and "osteophyte disc protrusion complex." The records from Injury Treatment Centers of Texas indicate she was responding slowly and then favorably to therapy exercise until her release from care when she reached a "maximum chiropractic improvement, which indicates a persisting condition that has improved but not completely resolved." On January 29, 2013, Gutierrez saw a doctor whose impressions were that Gutierrez had experienced or was experiencing muscular and facet injuries; bilateral shoulder "sprain/strain"; and left knee "sprain/strain." That doctor recommended Gutierrez "continue conservative care." On March 1, 2013, Gutierrez visited a radiologist who found that "[n]o displaced fracture [was] appreciated" and that there was "a very mild curvature within the lumber spine convex to the left." He also found "[n]o vertebral body anomalies [were] seen" and "no listhesis." In May and June of 2013, Gutierrez saw an orthopedic surgeon, who noted Gutierrez's complaints of onset of acute pain that improved to intermittent and manageable, as well as sprains and pain in Gutierrez's lower back and left knee, but concluded "[e]xam reveals no substantial objective physical findings." On May 14, 2013, Gutierrez was examined by Envision Imaging, which found some "mild disc degeneration," "mild foraminal disc bulges," "mild stenosis," and "a few small benign spinal hemangiomas."
None of the doctors or other medical personnel who examined or treated Gutierrez testified in person or by deposition, nor did Gutierrez provide any affidavits from same.
C. Analysis of Evidence of Past Physical Pain and Mental Anguish
The foregoing evidence would support conflicting conclusions about whether Gutierrez suffered any significant injury and the severity of any injury she may have suffered. The jury may have believed that Gutierrez did in fact suffer some injury that she then sought medical care to treat, but that Gutierrez did not suffer either pain or mental anguish substantial enough to warrant a monetary award. See Blizzard, 756 S.W.2d at 804-05. We conclude the evidence here is factually sufficient to support the jury's decision not to award Gutierrez damages for past physical pain and mental anguish.
We overrule Gutierrez's second issue.
CONCLUSION
We affirm the trial court's judgment.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE 160354F.P05
JUDGMENT
On Appeal from the County Court at Law No. 5, Dallas County, Texas
Trial Court Cause No. CC-13-05902-E.
Opinion delivered by Justice Schenck, Justices Lang and Fillmore participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee CANDACE RENEE HADSELL recover her costs of this appeal from appellant MARIA LUISA GUTIERREZ. Judgment entered this 3rd day of May, 2017.