Earle L. Wingo, III v. Kenneth Dell Taylor--Appeal from 55th District Court of Harris County

Affirmed and Memorandum Opinion filed November 3, 2005

Affirmed and Memorandum Opinion filed November 3, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00466-CV

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 EARLE L. WINGO, III, Appellant

V.

 KENNETH DELL TAYLOR, Appellee

On Appeal from the 55th District Court

 Harris County, Texas

Trial Court Cause No. 02-26575

M E M O R A N D U M O P I N I O N

Appellant, Earle L. Wingo, III, appeals from a judgment awarding him $2,500 in damages for injuries he sustained when appellee, Kenneth Dell Taylor, assaulted him. Wingo, in his sole point of error, raises a factual sufficiency challenge to the amount awarded by the court, claiming that he should have been awarded more. We affirm.

Factual and Procedural Background

This case arose from an assault that occurred on March 28, 2002 at a restaurant. The parties were previously acquainted as neighbors. The evidence showed that Wingo had had an affair with Taylor=s wife, which had ended several months before the assault. Coincidentally, both parties arrived at the restaurant within a short time of each other. Wingo, who was drinking, arrived first. Both parties Alip synched@ profanities at one another, and the encounter soon escalated into a verbal argument and Wingo=s invitation to Atake it outside.@ Although the parties= accounts vary, it appears that Taylor led the way toward the restaurant exit with Wingo following, then Taylor turned and struck Wingo in the face with his fist. Wingo fell to the ground, unconscious, while Taylor struck him at least two more times, causing significant injuries to Wingo=s jaw, nose, and eyes.

At the bench trial, the two parties were the sole witnesses. According to Wingo, the assault required an eight-hour surgery to rebuild his jaw and nose, thirty-five staples and numerous stitches to his face, a trachea implant to help him breathe, two and a half weeks= hospitalization, and three months= bed rest. He testified that his injuries caused significant pain and suffering from which he still suffers. Wingo further testified that his injuries forced him to quit his job as a construction manager because he is Anot as smart as [he] used to be,@ that he has suffered lost earnings, that he has trouble sleeping, and that he expects to have further corrective surgery on his jaw and one of his eyes. Wingo offered fifty photographs as evidence of the extent of his injuries.[1]

Taylor admits assaulting Wingo but essentially claims that it was self defense because he had heard that Wingo sometimes carried a weapon. Taylor further testified that Wingo spent only eleven days in the hospital and that Taylor personally observed him moving his vehicle during the period in which Wingo claims he was confined to his bed.

At the close of the evidence, the trial judge ruled for Wingo in the amount of $2,500, stating as follows:

It=s very clear that nobody has completely clean hands on this deal. And I know what it means when somebody gets asked to go outside. And if I was asked to go outside, I would know what I was heading for. It does sound like to me . . . that Mr. Taylor started it, once everybody got outside, and then hit [Wingo] at least a couple more times. Once, he hit [Wingo] in self-defense.

I didn=t hear any . . . [evidence of] how much the medical bills were, or anything like that. And in light of the previous relationship between these two men, my judgment is for the plaintiff in the amount of $2,500.

Wingo appeals the judgment, asserting that the trial court=s damage award was inadequate, and he asks this court to reverse and remand for a new trial.

Analysis

In his sole issue presented for review, Wingo argues that the trial court=s damage award was Amanifestly inadequate.@ Given Wingo=s language, this appeal challenges the factual sufficiency of the evidence. See, e.g., Cullins v. Foster, 171 S.W.3d 521, 539 (Tex. App.CHouston [14th Dist.] July 28, 2005, pet. filed) (describing Amanifestly unjust@ and Aagainst the great weight and preponderance of the evidence@ as language relevant to a factual sufficiency review). In reviewing the factual sufficiency of the evidence, we examine the entire record, considering both the evidence in favor of, and against, the challenged findings. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). After weighing all the evidence, we set aside a fact finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). As the reviewing court, we do not substitute our judgment for that of the trial court merely because we might have reached a different conclusion. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1986).

The trier of fact has discretion to award damages within the range of evidence presented at trial, even if the reasoning by which a particular figure was reached is unclear. Knox v. Taylor, 992 S.W.2d 40, 62 (Tex. App.CHouston [14th Dist.] 1999, no pet.). Further, when testimony is limited to a complainant=s subjective description of his limitations and suffering and is not subject to direct proof, the trier of fact may award zero damages. See Peter v. Ogden Ground Servs. Inc., 915 S.W.2d 648, 650 (Tex. App.CHouston [14th Dist.] 1996, no writ). In his brief, Wingo does not specify whether he contends that the trial court should have awarded more economic, or more non-economic, damages. In the interest of justice, we consider both.

In this case, possible economic damages include medical expenses and loss of earnings. A party seeking an award for medical expenses must present specific evidence of their reasonableness and necessity, in addition to proof of the actual amount expended. Rivas v. Garibay, 974 S.W.2d 93, 95 (Tex. App.CSan Antonio 1998, pet. denied). Moreover, any claim for future medical expenses must be supported by proof of their reasonableness. See Chapin v. Hunt, 521 S.W.2d 123, 126 (Tex. App.CBeaumont 1975, writ dism=d). At trial, Wingo offered photographic evidence of his injuries and testified about the surgery and hospitalization he underwent after the assault. He also testified that A[t]hey are still looking at this eye here to maybe operate on it again.@ However, he offered no evidence of the amount expended through either expert or his own testimony, nor did he address the cost or reasonableness of future corrective surgery. Regarding loss of earnings, recovery is based on the difference between the income earned before and after the injury. See Glasscock v. Armstrong Cork Co., 946 F.2d 1085, 1091 (5th Cir. 1991). Though Wingo testified that he has suffered a loss of earnings, that he can no longer handle large construction projects, and that he had to change jobs because of his injuries, he offered no evidence of the amount of income he earned either before or after the assault. Thus, Wingo presented no evidence to support an award for economic damages based on medical expenses or loss of earnings.

Generally, non-economic damages such as pain and suffering are left largely to the discretion of the trier of fact. Peter, 915 S.W.2d at 651. As previously noted, when damages are presented solely through subjective testimony, it is within the fact finder=s discretion to award zero damages. Id. at 650. At trial, Wingo testified about the pain he endured and that he still suffers considerable discomfort. The trial court=s award of $2,500 demonstrates that the trial court agreed that some damages were warranted. However, the court also considered the credibility of the parties and determined that Wingo was not an innocent victim. It is well within the trial court=s discretion to consider such circumstances when awarding damages.

The evidence is factually sufficient to support the trial court=s damage award. We overrule Wingo=s sole issue and affirm the trial court=s judgment.

/s/ Margaret Garner Mirabal

Justice

Judgment rendered and Memorandum Opinion filed November 3, 2005.

Panel consists of Chief Justice Hedges, Justice Anderson, and Senior Justice Mirabal.*

* Senior Justice Margaret Garner Mirabal sitting by assignment

[1] Wingo=s fifty photographs, which were kept in the reporter=s record, were subsequently lost as this case was pending appeal. Pursuant to Tex. R. App. P. 34.6(f)(4), this court abated the appeal and ordered the trial court to conduct a hearing to determine whether the lost exhibits could be replaced. At the hearing, the parties agreed upon thirty-seven photographs as accurate duplicates of the originals, which Wingo attached to the record that is now before this court.