Opinion
14-19-01011-CV
06-17-2021
METROPOLITAN TRANSIT AUTHORITY, Appellant v. ALBERTO MENDOZA, Appellee
On Appeal from the 334th District Court Harris County, Texas Trial Court Cause No. 2016-24800
Panel consists of Justices Bourliot, Zimmerer, and Spain (Spain, J. concurring without opinion).
MEMORANDUM OPINION
JERRY ZIMMERER, JUSTICE
Appellant Metropolitan Transit Authority ("Metro") appeals from a final judgment awarding appellee Alberto Mendoza damages following a jury trial on Mendoza's suit for injuries sustained after a Metro bus hit Mendoza's parked truck. In six issues Metro challenges the jury's verdict on damages, the trial court's submission of a question on "lost wages," and the trial court's exclusion of certain evidence. We affirm.
Background
On January 29, 2016 Mendoza parked his work truck in one lane of a two-lane road. Mendoza had the passenger door open on the curb side of the street and was leaning into the truck putting his tools away. A Metro bus attempted to drive past Mendoza's truck but hit the truck, which caused injury to Mendoza's lower back.
Mendoza testified that before the accident he worked in a physically demanding job working with MPT, a contractor for Centerpoint Energy. Mendoza worked 50 to 60 hours per week earning $18 to $19 per hour. Before the accident Mendoza ran approximately two marathons per year and participated in several triathlons. After the accident, Mendoza had only run one marathon and no triathlons.
On the day of the accident Mendoza parked his truck and trailer on the side of the street to work on laying an underground power line. Mendoza's truck had been parked in the area for two to three hours. Mendoza had to park his truck as close to the curb as possible to allow access to the utility poles. As soon as Mendoza parked the truck and trailer, he placed orange traffic cones around the back of the trailer to warn approaching traffic.
As a Metro bus passed the truck it knocked over the cone closest to the trailer and then hit the truck. At that time Mendoza had the passenger door open closest to the curb. Mendoza was bent over the passenger seat putting his tool bags away. Mendoza felt the impact when the bus hit the truck and braced for any further impact. As the bus hit the truck, Mendoza testified that the passenger door rocked and hit him in the back. Video of the accident taken from the bus's cameras shows the bus colliding with the truck. The video also shows that the impact caused the truck's tires to turn toward the curb.
At the accident scene Mendoza felt pain in his low back radiating down his leg. Bruising appeared on his back the next day. Mendoza was transported by ambulance to the hospital where he received injections in his back, X-rays, and a CT scan.
Mendoza attended approximately 30 chiropractic sessions and received two injections from a pain management doctor. The injections eased the pain in the short term but his back began to hurt shortly after receiving the injections. The injections required anesthesia and a trip to a day surgery center, which caused Mendoza to lose a day of work each time. The pain management doctor recommended a third injection, but Mendoza was unable to afford payment for the injection and time off work to obtain it. An exhibit itemizing Mendoza's medical expenses showed a total of $41,580.23.
Mendoza was demoted from his job and placed on light duty. In the light-duty job Mendoza was unable to receive overtime pay that he received before the accident. Mendoza testified that he lost approximately $12,000 in wages including both regular time and overtime. In addition to Mendoza's testimony, the trial court admitted two exhibits, Plaintiff's Exhibits 36 and 37, to show lost wages. In Plaintiff's Exhibit 36, Mendoza listed regular hours and overtime hours that he was not paid due to his injury totaling $12,211.90. Plaintiff's Exhibit 37 included several pay stubs dated from November 12, 2015 through July 30, 2016 showing the net pay Mendoza received after payroll deductions and federal income taxes.
Mendoza testified that before the accident he led an active lifestyle including athletic endeavors such as running, swimming, cycling, backpacking, and rock climbing. After the accident, "[a]ny outdoor activity was put to pretty much a hold." Mendoza testified that he tried to ride a bike again but was unable to do so without pain. Since the accident Mendoza gained almost 30 pounds. After seven months of treatment Mendoza was able to run a marathon but testified that he did not plan to run any more in the future due to reduced training from his injury. Mendoza was also unable to compete in triathlons because he could not ride a bike or even swim. Mendoza testified that he was "not going to be the same again, as an athlete or outdoorsy father type."
Dr. Robert Barton testified that he treated Mendoza for injuries sustained in the accident. Mendoza came to Barton complaining of low back pain that occurred after the accident. Mendoza also complained of pain radiating into his legs. Mendoza reported no history of back pain before the accident. Mendoza had been an active athlete competing in endurance events such as the marathon before the accident.
Barton diagnosed Mendoza with abnormality within the lumbar disk. An MRI showed Mendoza had several herniated disks. Barton referred Mendoza to a pain specialist who administered spinal injections. The treatments reduced Mendoza's pain by about forty to fifty percent, but he was unable to work in the job he had before the accident and was unable to enjoy recreational sports as he had done before the accident. Barton testified that Mendoza likely suffered permanent physical impairment.
Edgar Johnson, the Metro bus driver, testified that he retired from Metro after driving for 43 years. Johnson testified that the truck was parked too far away from the curb, which did not allow the bus sufficient room to safely pass.
A Metro disciplinary report was admitted into evidence, which showed that Johnson was disciplined for involvement in a "preventable accident." The report noted that Johnson "failed to use all the necessary safety skills to prevent this accident."
The jury determined that the negligence of both Metro and Mendoza proximately caused the accident, apportioning seventy percent fault to Metro and thirty percent to Mendoza. The jury found damages sustained by Mendoza as follows:
Medical care expenses sustained in the past
$41,580.23
Physical pain and mental anguish sustained in the past
$7,200.00
Physical pain and mental anguish that, in reasonable probability, will be sustained in the future
$15,000.00
Physical impairment sustained in the past
$20,000.00
Physical impairment that, in reasonable probability, will be sustained in the future
$5,000.00
Lost wages sustained in the past
$12,211.90
The trial court's final judgment awarded Mendoza seventy percent of the damages found by the jury.
Analysis
Metro appealed the trial court's judgment asserting (1) there was insufficient evidence that Mendoza's injuries were caused by the accident; (2) there was no evidence of past and future mental anguish; (3) there was insufficient evidence of past and future physical impairment; (4) the trial court erred in submitting lost wages as an element of damages; (5) the trial court erred in awarding lost wages because the evidence presented did not meet the requirements of section 18.091 of the Civil Practice and Remedies Code; and (6) the trial court erred in excluding certain evidence.
I. Legally sufficient evidence supports the jury's findings on causation and damages.
In Metro's first three issues it challenges the legal sufficiency of the evidence to support causation and damages.
Metro is not specific in its brief as to whether it challenges legal or factual sufficiency of the evidence. Metro, however, did not preserve a factual sufficiency issue for review and did not request remand for a new trial; we therefore address the legal sufficiency of the evidence. See Daniels v. Empty Eye, Inc., 368 S.W.3d 743, 748 (Tex. App.-Houston [14th Dist.] 2012, pet. denied) (a party challenging the factual sufficiency of the evidence to support a jury finding must raise the issue in a motion for new trial to preserve error); Tex. R. Civ. P. 324(b)(2).
A. Standard of Review
In reviewing the legal sufficiency of the evidence to support a jury's findings, we review the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We credit favorable evidence if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder could not. Id. at 827.
We sustain a legal sufficiency or "no evidence" challenge only when (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003); Vast Constr., LLC v. CTC Contractors, LLC, 526 S.W.3d 709, 719 (Tex. App.-Houston [14th Dist.] 2017, no pet.). When a party challenges the legal sufficiency of the evidence on a finding on which it did not bear the burden of proof, the party must show that no evidence supports the finding. Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 215 (Tex. 2011); Sloane v. Goldberg B'Nai B'Rith Towers, 577 S.W.3d 608, 622 (Tex. App.-Houston [14th Dist.] 2019, no pet.).
We apply this standard mindful that the jury is the sole judge of the credibility of the witnesses and the weight to be given to their testimony, and we indulge every reasonable inference in support of the jury's findings. See City of Keller, 168 S.W.3d at 819, 822; Tendeka, Inc. v. Nine Energy Serv. LLC, No. 14-18-00018-CV, 2019 WL 6872942, at *5 (Tex. App.-Houston [14th Dist.] Dec. 17, 2019, no pet.) (mem. op.).
B. Causation
In Metro's first issue it asserts the trial court erred in rendering judgment for any of Mendoza's damages because there was insufficient evidence that Mendoza's injuries were caused by the accident. Metro does not challenge the jury's findings that both Metro and Mendoza were negligent or the jury's apportionment of fault, but asserts that Mendoza's evidence of causation is lacking because he did not present medical evidence that his back injury was caused by the accident. Specifically, Metro asserts that expert testimony was necessary to establish causation as to Mendoza's medical conditions.
The "existence and nature of certain basic conditions, proof of a logical sequence of events, and temporal proximity between an occurrence and the conditions can be sufficient to support" a finding of causation without expert evidence. Guevara v. Ferrer, 247 S.W.3d 662, 667 (Tex. 2007). Although expert testimony generally is necessary to establish causation for medical conditions outside the common knowledge and experience of jurors, non-expert evidence alone is sufficient to support a finding of causation "where both the occurrence and conditions complained of are such that the general experience and common sense of laypersons are sufficient to evaluate the conditions and whether they were probably caused by the occurrence." Jelinek v. Casas, 328 S.W.3d 526, 667 (Tex. 2010).
In the context of an automobile accident, lay testimony "establishing a sequence of events which provides a strong, logically traceable connection between the event and the condition" can support a finding of causation, provided that such conditions "(1) are within the common knowledge and experience of laypersons, (2) did not exist before the accident, (3) appeared after and close in time to the accident, and (4) are within the common knowledge and experience of laypersons, caused by automobile accidents." Guevara, 247 S.W.3d at 667.
The Texas Supreme Court has acknowledged that "causation as to certain types of pain, bone fractures, and similar basic conditions following an automobile collision can be within the common experience of lay jurors." Id. at 668. Reliance on lay testimony does not require injuries or pain to be "overt"-meaning obvious or immediately manifested at the time of the accident. Delayed soreness or injury can be within the experience and knowledge of laypersons as being caused by car accidents. See Figueroa v. Davis, 318 S.W.3d 53, 61-62 (Tex. App.-Houston [1st Dist.] 2010, no pet.) (plaintiff's lay testimony that he hit his teeth on the steering wheel during a car accident and his teeth started crumbling and falling out days later was sufficient evidence to prove causation; this evidence fell "within the common experience of lay persons so that causation could stand on lay testimony"); Tex. Dep't of Transp. v. Banda, No. 03-09-00724-CV, 2010 WL 5463857, at *2 (Tex. App.-Austin Dec. 22, 2010, pet. denied) (mem. op.) (plaintiff's lay testimony sufficient to prove causation where neck and back injuries were not immediately manifested after the car accident but pain and soreness occurred later); see also State Office of Risk Mgmt. v. Larkins, 258 S.W.3d 686, 691 (Tex. App.-Waco 2008, no pet.) (expert testimony not required to prove that push into a wall caused plaintiff's back injury-although back pain manifested itself the day after plaintiff was pushed-because back injuries within common knowledge of the jury to evaluate causation); Metro. Transit Auth. v. Harris Cnty., No. 14-06-00513-CV, 2008 WL 4354503, at *8 (Tex. App.-Houston [14th Dist.] Aug. 26, 2008, no pet.) (mem. op.) (lay testimony established a sequence of events from which jury could infer without the aid of expert testimony that injuries were caused by bus collision).
Mendoza testified that he was bending over putting tools away in his truck when the bus hit the truck. As the bus hit, Mendoza testified that the passenger door rocked hitting his back. The trial court admitted photographs into evidence showing bruising on Mendoza's back. Metro contends that video of the accident did not show the passenger door rocking. There was testimony, however, that the video did not show everything that happened. Mendoza said he immediately felt pain in his back radiating down his legs. Although Metro's representative testified that Mendoza was walking around at the accident site, Mendoza explained that he was trying to alleviate the back and leg pain by keeping his muscles moving. Mendoza testified that he was an active athlete and had not experienced back pain before the accident.
Mendoza's testimony showed a logical sequence of events and temporal proximity from which a jury could properly infer, without the aid of expert testimony, that the accident caused Mendoza to suffer back and leg pain. The back and leg pain Mendoza suffered very shortly after the accident can be "within the experience and knowledge of laypersons as being caused by car accidents." See Devoti v. Delaney, No. 14-11-00497-CV, 2012 WL 3677050, at *4 (Tex. App.- Houston [14th Dist.] Aug. 28, 2012, no pet.) (mem. op.). Viewing the evidence in the light most favorable to the jury's finding, and indulging every reasonable inference that would support it, we hold the evidence supported the jury's finding that the accident caused Mendoza's injuries. See City of Keller, 168 S.W.3d at 822. We overrule Metro's first issue.
C. Damages
1. Mental anguish
In Metro's second issue it asserts the trial court erred in awarding damages for past and future mental anguish because insufficient evidence was presented during trial. The jury awarded Mendoza $7,200 in damages for past physical pain and mental anguish and $15,000 for future physical pain and mental anguish. The jury's verdict does not distinguish between physical pain and mental anguish; the two elements of damages were submitted to the jury and no party objected to the combined submission.
A damages award for mental anguish will survive a legal-sufficiency challenge when the record bears "direct evidence of the nature, duration, and severity of [the plaintiff's] mental anguish, thus establishing a substantial disruption in the plaintiff['s] daily routine," or when the record demonstrates "evidence of a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger." Anderson v. Durant, 550 S.W.3d 605, 619 (Tex. 2018) (quoting Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995)). Mental anguish is a "relatively high degree of mental pain and distress" that is "more than mere disappointment, anger, resentment or embarrassment, although it may include all of these." Parkway Co., 901 S.W.2d at 444. There must be both evidence of the existence of compensable mental anguish and evidence to justify the amount awarded. Hancock v. Variyam, 400 S.W.3d 59, 68 (Tex. 2013). To support an award for future mental anguish, a plaintiff must demonstrate a reasonable probability that he would suffer compensable mental anguish in the future. Adams v. YMCA of San Antonio, 265 S.W.3d 915, 917 (Tex. 2008).
Plaintiffs may also recover for physical pain. See PNS Stores, Inc. v. Munguia, 484 S.W.3d 503, 517 (Tex. App.-Houston [14th Dist.] 2016, no pet.). Damages for future physical pain are recoverable if a jury could reasonably infer that the plaintiff will feel physical pain in the future. Id.
In personal injury cases, the jury has discretion over the amount of damages. City of Houston v. Howard, 786 S.W.2d 391, 395 (Tex. App.-Houston [14th Dist.] 1990, writ denied). The process of awarding damages for amorphous, discretionary injuries such as physical pain and mental anguish is inherently difficult because the alleged injury is a subjective, unliquidated, nonpecuniary loss. PNS Stores, 484 S.W.3d at 518. Despite this broad discretion, however, there must be some evidence to justify the amount awarded, as a jury "cannot simply pick a number and put it in the blank." Saenz v. Fid. & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996).
As discussed above, Mendoza testified that he suffered physical pain at the time of the accident and remained in pain years later by the time of trial. The testimony demonstrated that Mendoza had been in pain for almost three years and, despite reaching "maximum medical improvement," continued to experience pain. Both Mendoza and Barton testified that Mendoza would continue to suffer pain in the future. Mendoza testified that the pain prevented him from enjoying everyday activities and time with his family. Because the two elements of damages-physical pain and mental anguish-were submitted together, we cannot speculate how much of the jury's verdict was attributable to physical pain, mental anguish, or both.
Having viewed the evidence in the light most favorable to the jury's findings and indulging every reasonable inference that would support them, we hold the evidence supports the jury's findings of damages for past and future physical pain and mental anguish. See PNS Stores, 484 S.W.3d at 518 (evidence of headaches, irritability, dizziness, and memory loss supported damages for past and future physical pain and mental anguish); Flynn v. Racicot, No. 09-11-00607-CV, 2013 WL 476756, at *6 (Tex. App.-Beaumont Feb. 7, 2013, no pet.) (mem. op.) ("Evidence of continuing pain may support an award of future physical pain and future mental anguish."); Wal-Mart Stores, Inc. v. Ortiz, No. 13-98-518-CV, 2000 WL 35729388, at *7-8 (Tex. App.-Corpus Christi Aug. 3, 2000, pet. denied) (mem. op.) (evidence that plaintiff continued to have pain in her leg and trouble walking, among other things, held sufficient to support awards for future physical pain, mental anguish, and physical impairment). We overrule Metro's second issue.
2. Physical Impairment
In Metro's third issue it challenges the sufficiency of the evidence to support the jury's damage award for past and future physical impairment. The jury awarded Mendoza $20,000 in damages for past physical impairment and $5,000 for future physical impairment.
Physical impairment, sometimes called loss of enjoyment of life, encompasses the loss of the injured party's former lifestyle. See PNS Stores, 484 S.W.3d at 514; see also Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 772 (Tex. 2003). To receive physical impairment damages, the plaintiff must prove that (1) he incurred injuries that are distinct from, or extend beyond, injuries compensable through other damage elements, and (2) these distinct injuries have had a "substantial" effect. Enright v. Goodman Distrib., Inc., 330 S.W.3d 392, 402 (Tex. App.-Houston [14th Dist.] 2010, no pet.).
Metro argues that Mendoza failed to present evidence of physical impairment because he ran a marathon after the accident and Barton testified that Mendoza might have been able to do some of the activities he had been doing before the accident. The jury heard testimony from Mendoza that before the accident he led an active lifestyle including athletic endeavors such as running, swimming, cycling, backpacking, and rock climbing. After the accident, "[a]ny outdoor activity was put to pretty much a hold." After seven months of treatment Mendoza was able to run a marathon but testified that he did not do so easily and did not plan to run any more marathons in the future due to reduced training from his injury. Mendoza was also unable to compete in triathlons because he could not ride a bike or even swim without pain. Mendoza testified that he was "not going to be the same again, as an athlete or outdoorsy father type."
Mendoza's testimony reflects impairment beyond immediate pain and suffering and supports recovery for future physical impairment. See Plainview Motels, Inc. v. Reynolds, 127 S.W.3d 21, 39 (Tex. App.-Tyler 2003, pet. denied) (upholding award for future physical impairment where evidence showed plaintiff's injuries impeded his ability to sleep, run, bicycle, participate in triathlons, and play with his children); Tri-State Motor Transit Co. v. Nicar, 765 S.W.2d 486, 493 (Tex. App.-Houston [14th Dist.] 1989, no writ) (holding that testimony showing that prior to accident plaintiff was active and athletic person who regularly participated in sports, and after his injuries was unable to enjoy recreational sports activities, extended beyond pain and suffering and supported recovery for future physical impairment).
From the evidence, the jury could have reasonably inferred that Mendoza will suffer physical impairment in the future. See, e.g., PNS Stores, 484 S.W.3d at 519- 20 (holding evidence legally and factually sufficient to support the jury's award of $420,000 for future physical impairment); Marquette Transp. Co. Gulf-Inland, LLC v. Jackson, No. 01-10-01025-CV, 2012 WL 1454476, at *13-14 (Tex. App.- Houston [1st Dist.] Apr. 26, 2012, no pet.) (mem op.) (holding evidence plaintiff "permanently limited" and no longer "able to participate in the same activities that he pursued before he was injured, including everything from standing in order to cook and clean to playing basketball" sufficient to support jury's award of $500,000 for future physical impairment).
We conclude that the testimony of Mendoza and Barton constitutes more than a scintilla of evidence supporting the jury's award of damages to Mendoza for past and future physical impairment. See City of Keller, 168 S.W.3d at 810. Accordingly, viewing the evidence in the light most favorable to the jury's award, we hold the evidence is legally sufficient to support the jury's award of damages for past and future physical impairment. We overrule Metro's third issue.
II. Metro did not preserve charge error on the "lost wages" question.
In Metro's fourth issue it contends the trial court erred in awarding lost wages because the "proper question to the jury is 'loss of wage earning capacity.'" Metro contends it objected to the submission of lost wages as an element of damages because the proper element was loss of wage earning capacity. The record does not reflect such an objection. To the contrary, the record reflects that Metro objected to a jury question on loss of wage earning capacity, the trial court sustained the objection, and that element of damages was removed from the charge.
Mendoza filed a proposed charge with the court on September 29, 2017. In that proposed charge Mendoza requested the damages elements of past medical care, past and future physical pain, and past and future physical impairment. Mendoza also requested damages questions on:
f. Loss of earning capacity sustained in the past.
g. Lost wages sustained in the past.
As stated above, Metro objected to the sufficiency of the evidence to support damages for medical care, physical pain, and physical impairment. As to loss of earning capacity and lost wages Metro objected as follows:
As for Item F of Question Number 3, we object. METRO objects to the submission of lost earning capacity sustained in the past, as there is no
evidence of that.
And then the lost wages sustained in the past, Item G, do not comport with Civil Practice & Remedies Code. That is Items F and G do not comport with the standards set forth in the Civil Practice & Remedies Code, Section 18.091, which says that loss of earning capacity and loss of earnings must be presented in the form of a net loss, after reduction for income tax payments for unpaid tax liability, pursuant to the federal income tax law. There is absolutely no evidence that supports a submission of F and G in the charge.
The trial court asked Mendoza what evidence he had to support those elements of damages. After Mendoza's response, the trial court sustained Metro's objection to the question on loss of earning capacity and overruled Metro's objection on lost wages. Therefore, the question as to loss of earning capacity was removed from the charge that was submitted to the jury.
On appeal, however, Metro argues that the proper measure of damages is loss of earning capacity, not lost wages. To preserve charge error complaint for appellate review, a party must "point out distinctly the objectionable matter and the grounds of the objection" before the charge is read to the jury. Tex.R.Civ.P. 272, 274; see also Operation Rescue-Nat'l v. Planned Parenthood of Houston & Se. Tex., Inc., 937 S.W.2d 60, 69 (Tex. App.-Houston [14th Dist.] 1996), aff'd, 975 S.W.2d 546 (Tex. 1998). "Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections." Tex.R.Civ.P. 274. Objections to the charge and requests for instructions must comport with the arguments made on appeal. Saenz-Guerrero v. Gardner, 587 S.W.3d 191, 194 (Tex. App.-Houston [14th Dist.] 2019, no pet.).
In this case, Metro did not object that loss of earning capacity was the correct measure of damages; quite the opposite, Metro successfully objected to the question on loss of earning capacity and the trial court removed it from the charge. Metro, therefore, waived its complaint that the trial court should have submitted a question on loss of earning capacity in the charge. We overrule Metro's fourth issue.
III. The trial court did not err in awarding lost wages damages.
In Metro's fifth issue it asserts the trial court erred in awarding lost wages because the evidence presented did not meet the requirements of section 18.091 of the Civil Practice and Remedies Code. As noted above, at trial, Metro objected to submission of a question on lost wages on the grounds that the evidence did not meet the requirements of section 18.091 and there was no evidence of lost wages.
On appeal Metro asserts that Mendoza's Exhibits 36 and 37 were the only evidence of lost wages and, because they were not admissible, there is no evidence of lost wages. Metro further contends Mendoza's only proof of lost wages was loss of overtime pay, which is no evidence of lost wages.
A. Admission of Exhibits 36 and 37
Plaintiff's Exhibit 36 was a chart showing Mendoza's wages beginning the week of January 13, 2016 and ending November 12, 2016, noting the days and times Mendoza was unable to work. Plaintiff's Exhibit 37 included several pay stubs dated from November 12, 2015 through July 30, 2016 showing the net pay Mendoza received after payroll deductions and federal income taxes.
At trial, before voir dire of the jury panel, Metro objected to the admission of Plaintiff's Exhibits 36 and 37 as not in compliance with section 18.091 of the Civil Practice and Remedies Code, which requires claimants seeking damages for loss of earnings to present their evidence "in the form of a net loss after reduction for income tax payments or unpaid tax liability pursuant to any federal income tax law." Tex. Civ. Prac. & Rem. Code § 18.091. The trial court overruled Metro's objection to Plaintiff's Exhibit 37, the pay stubs, and asked Mendoza to revise Plaintiff's Exhibit 36, the chart. Mendoza agreed to revise Plaintiff's Exhibit 36. After the jury was seated Metro raised compliance with section 18.091 again, but the trial court did not rule on Metro's objection. Mendoza testified, without objection, that he lost wages because he was demoted, was not paid when he attended medical appointments, and lost overtime pay. Metro did not object to Mendoza's testimony or his reference to both Plaintiff's Exhibits 36 and 37 in his testimony.
The record does not reflect how the chart was revised.
We hold that Metro waived any objection to Plaintiff's Exhibit 36 by failing to obtain a ruling on its objection. See Tex. R. App. P. 33.1; Atl. Richfield Co. v. Misty Products, Inc., 820 S.W.2d 414, 421 (Tex. App.-Houston [14th Dist.] 1991, writ denied) (To preserve complaint on appeal regarding a trial court's ruling on the admissibility of evidence, a party must make a timely objection and obtain a ruling).
As to Plaintiff's Exhibit 37, Metro preserved its objection that the evidence did not comply with section 18.091 of the Civil Practice and Remedies Code.Evidence to prove loss of earnings or earning capacity "must be presented in the form of a net loss after reduction for income tax payments or unpaid tax liability pursuant to any federal income tax law." Tex. Civ. Prac. & Rem. Code § 18.091(a). The purpose of the statute is to prevent a plaintiff from obtaining a windfall by being awarded pretax income on awards that are not subject to taxation. See Big Bird Tree Services v. Gallegos, 365 S.W.3d 173, 179 (Tex. App.-Dallas 2012, pet. denied).
Metro also objected to Plaintiff's Exhibit 37 as hearsay, but does not argue that issue on appeal.
Plaintiff's Exhibit 37 contained Mendoza's pay stubs, which reflected his net income after reduction for income tax and other withholding. Metro did not state in the trial court, and has not stated on appeal, how Plaintiff's Exhibit 37 does not comply with section 18.091. We have reviewed Plaintiff's Exhibit 37 and conclude that it complies with section 18.091 in that it lists Mendoza's net income after federal tax withholding. See Tex. Civ. Prac. & Rem. Code § 18.091; Big Bird Tree Serv., 365 S.W.3d at 179 (purpose of statute is to prevent plaintiff from obtaining a windfall by being awarded pretax income on awards not subject to taxation). Even if Plaintiff's Exhibit 37 were improperly admitted, as shown below, the evidence is legally sufficient to support the award of lost wages to Mendoza.
B. Sufficiency of Evidence
The jury awarded Mendoza $12,211.90 in lost wages sustained in the past. Metro asserts there is no evidence of Mendoza's lost wages.
Past lost wages or earnings are the actual loss of income due to an inability to perform a specific job a party held from the time of injury to the date of trial. Geoscience Eng'g & Testing, Inc. v. Allen, No. 01-03-00402-CV, 2004 WL 2475280, at *6 (Tex. App.-Houston [1st Dist.] Nov. 4, 2004, pet. denied) (mem. op); see also Dawson v. Briggs, 107 S.W.3d 739, 749-50 (Tex. App.-Fort Worth 2003, no pet.) (holding that evidence was sufficient to support lost wages for motorist who had made $9 an hour working in doctor's office); Strauss v. Cont'l Airlines, Inc., 67 S.W.3d 428, 435 (Tex. App.-Houston [14th Dist.] 2002, no pet.) (holding that evidence was insufficient to support award for loss of earning capacity and distinguishing from loss of wages).
The measure of past lost wages is the sum that the plaintiff would have earned had he not been injured, less the sum that he did earn. See Koko Motel, Inc. v. Mayo, 91 S.W.3d 41, 52 (Tex. App.-Amarillo 2002, pet. denied); see also Patino-Perez v. Howland, No. 01-16-00054-CV, 2017 WL 3598241, at *6 (Tex. App.-Houston [1st Dist.] Aug. 22, 2017, no pet.) (mem. op.).
Mendoza testified that before he was injured, he worked 50 to 60 hours per week earning $18, and later $19 per hour at a physically demanding job. After the injury Mendoza missed work to attend medical appointments and was not paid when he missed work. Mendoza was demoted to light-duty work, which did not pay overtime. After performing light duty for approximately three months Mendoza was moved to the "guide wire crew" where he also lost overtime and some regular time. Plaintiff's Exhibit 36 showed the regular pay and overtime pay that Mendoza did not receive as a result of the accident. The total amount was $12,211.90, which coincides with the jury's verdict.
Metro argues, without citation to authority, that overtime pay lost is no evidence of lost wages. We have found no authority supporting Metro's position. See, e.g., A & L Indus. Services Inc. v. Oatis, No. 01-11-00471-CV, 2013 WL 5970933, at *7-8 (Tex. App.-Houston [1st Dist.] Nov. 7, 2013, no pet.) (mem. op.) (damage award for back pay lost due to improper suspension properly included overtime pay). Viewing the evidence in the light most favorable to the jury's finding, we conclude the jury's finding is supported by legally sufficient evidence and overrule Metro's fifth issue.
IV. The trial court did not err in excluding evidence.
In Metro's sixth issue it alleges the trial court erred in excluding evidence of Mendoza's "unprovoked nightly penile erections." On cross-examination, Metro asked Mendoza if he claimed as part of his injuries that any other part of his body was affected by the accident. Mendoza objected on the ground that the question assumed "facts not in evidence." The trial court initially overruled the objection but asked Mendoza's attorney whether Mendoza was claiming damages for the injury. Mendoza's attorney represented that Mendoza had not received medical treatment for the condition and was not claiming it as damages from the accident. The trial court excluded the evidence as irrelevant after Mendoza denied claiming damages for the alleged injury. Metro asserted the evidence was relevant because it "goes to the relevancy of his other claims that he is claiming" and "[i]t goes to the credibility of his other claims."
Metro made an offer of proof following trial in which it questioned Mendoza about statements made in his pretrial deposition. The offer of proof included the following excerpts from Mendoza's deposition testimony:
Q. [by Metro's attorney]: Right. But let's go on further. Also I asked you:
Okay. You told me that you didn't injure any other part of your body besides your low back?
And your answer was: "Right."
As a result of that, were there any other ramifications or other parts of your body that you believe were related to that injury?
Answer: My left side.
Question: What about the [sic] your left side?
Answer: Since that - since that was the injury part, the part of the body, my left side became more of a droopy side. My toes would get tingly and my legs would go numb on walking. Let's be real for this.
You said: "All right. I'll tell you everything because there is no secrets here in my life. My leg would go asleep on me while I'm walking. It would just go, like, real numb and I would get a lot of tingling sensation. My lower buttocks would hurt, like cramp up a little bit. My lower lumbar on this left side would irritate me. And the saddest thing about all of this was not knowing the erections, unconditional erections."
You were claiming all of those as a result of this incident.
A. [by Mendoza]: Yes.
On appeal Metro asserts the evidence of Mendoza's involuntary erections was relevant to Mendoza's claim of mental anguish damages and credibility.
We review the trial court's decision to admit or exclude evidence under an abuse of discretion standard. Katy Springs & Mfg., Inc. v. Favalora, 476 S.W.3d 579, 610 (Tex. App.-Houston [14th Dist.] 2015, pet. denied). A trial court exceeds its discretion when it acts in an arbitrary or unreasonable manner or without reference to guiding rules or principles. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); Barnhart v. Morales, 459 S.W.3d 733, 742 (Tex. App.- Houston [14th Dist.] 2015, no pet.). When reviewing matters committed to the trial court's discretion, a reviewing court may not substitute its own judgment for that of the trial court. Barnhart, 459 S.W.3d at 742. Thus, the question is not whether this court would have admitted the evidence. Id. Rather, an appellate court will uphold the trial court's evidentiary ruling if there is any legitimate basis for the ruling. Jones v. Mattress Firm Holding Corp., 558 S.W.3d 732, 737 (Tex. App.-Houston [14th Dist.] 2018, no pet.).
Metro argues on appeal, without citation to authority, that Mendoza's deposition testimony was admissible as relevant to Mendoza's credibility and damages for mental anguish. Metro argues, again without citation to authority, that "A plaintiff who seeks mental anguish damages, does not get to pick and choose (or limit) the life changing events which they want the jury to consider."
A. Metro failed to preserve error as to its relevancy claim regarding mental anguish damages.
"When a party fails to preserve error in the trial court or waives an argument on appeal, an appellate court may not consider the unpreserved or waived issue." Fed. Deposit Ins. Corp. v. Lenk, 361 S.W.3d 602, 604 (Tex. 2012). With the exception of fundamental error, which is not present here, a party generally must preserve a complaint for appellate review by making, and obtaining a ruling on, a timely request, objection, or motion that states the ruling sought with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. Tex.R.App.P. 33.1. Moreover, the complaint presented on appeal must comport with the complaint raised in the trial court. See Doan v. TransCanada Keystone Pipeline, LP, 542 S.W.3d 794, 807 (Tex. App.- Houston [14th Dist.] 2018, no pet.) (issue waived because appellate complaint that condemnor made no bona fide offer of an amount within the trial court's jurisdiction did not comport with trial-court complaint that condemnor made no bona fide offer at all); Moran v. Mem'l Point Prop. Owners Ass'n, Inc., 410 S.W.3d 397, 407 (Tex. App.-Houston [14th Dist.] 2013, no pet.) (trial objection that witness was not identified as a fact witness did not preserve appellate complaint that witness was not identified as an expert).
At no time did Metro apprise the trial court of its contention that evidence of Mendoza's unprovoked erections was relevant to his claim for mental anguish damages. Metro focused on the evidence's admissibility as to Mendoza's credibility. Because this complaint is not properly before us, we will not address the relevance as it relates to mental anguish damages. We will address, however, Metro's contention that the evidence was admissible to impeach Mendoza's credibility as a witness.
B. Evidence of Mendoza's unprovoked erections was not admissible to impeach Mendoza.
Metro further alleged the excluded evidence was relevant to Mendoza's credibility. Rule 401 broadly defines relevant evidence to include "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. Evidence that is not relevant is inadmissible, while relevant evidence is admissible unless otherwise excluded by law. Tex. R. Evid. 402. Relevance also governs the scope of cross-examination in Texas, as the rules allow witnesses to be cross-examined "on any matter relevant to any issue in the case." Tex. R. Evid. 611(b). In determining relevancy, we look at the purpose of offering the evidence and, if there is some logical connection, either directly or by inference, between the fact offered and the fact to be proved, the relevancy test is satisfied. Reliant Energy Services, Inc. v. Cotton Valley Compression, L.L.C., 336 S.W.3d 764, 793 (Tex. App.-Houston [1st Dist.] 2011, no pet.).
Under Texas Rule of Evidence 608(b), "[e]xcept for a criminal conviction under Rule 609, a party may not inquire into or offer extrinsic evidence to prove specific instances of the witness's conduct in order to attack or support the witness's character for truthfulness." Tex. R. Evid. 608(b). Metro attempted to offer extrinsic evidence-Mendoza's deposition testimony-to prove specific instances of Mendoza's conduct in order to attack his credibility.
Mendoza's deposition testimony about unprovoked erections was a collateral matter, i.e., a matter that was not relevant to proving a material issue in the case. See Turrubiartes v. Olvera, 539 S.W.3d 524, 529 (Tex. App.-Houston [1st Dist.] 2018, pet. denied). Mendoza's erections were not a material part of the plaintiff's case because he was not claiming at trial that they were damages as a result of the accident; they were not something Mendoza had to prove to prevail. See, e.g., TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 242 (Tex.2010) (evidence of plaintiff's immigration status was collateral matter and inadmissible under rule 608(b)). As a collateral matter-not relating to any of Mendoza's claims on the merits, and merely serving to contradict Mendoza on facts irrelevant to issues at trial-it was inadmissible impeachment evidence. Id. Because we must uphold the trial court's evidentiary ruling if there is any legitimate basis for the ruling, we cannot say that the trial court abused its discretion in excluding the evidence as irrelevant. See Enbridge Pipelines (E. Tex.) L.P. v. Avinger Timber, LLC, 386 S.W.3d 256, 264 (Tex. 2012). We overrule Metro's sixth issue.
Conclusion
Having overruled each of Metro's issues on appeal, we affirm the trial court's judgment.