Ignacio Cepeda Tovar v. Daniel Arambula--Appeal from 49th Judicial District Court of Zapata County

MEMORANDUM OPINION
No. 04-02-00640-CV
Ignacio Cepeda TOVAR,
Appellant
v.
Daniel ARAMBULA,
Appellee
From the 49th Judicial District Court, Zapata County, Texas
Trial Court No. 4827-A
Honorable Manuel R. Flores, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: September 24, 2003

AFFIRMED CONDITIONED ON REMITTITUR

Ignacio Cepeda Tovar ("Tovar") appeals a judgment rendered against him for damages resulting from an automobile accident. Although liability is undisputed, Tovar challenges the legal and factual sufficiency of the evidence to support several damage awards and asserts that the trial court abused its discretion in allowing an expert to change his opinion at trial. Because we conclude that the evidence is legally insufficient to support the jury's damage award for lost earning capacity sustained in the past, we suggest a remittitur of $7,548. If a remittitur is timely filed, the trial court's judgment will be reformed, and we will affirm the judgment as reformed.

Damages

In issues one, two, and four, Tovar contends that the evidence is legally and factually insufficient to support various damage awards.

In conducting a legal-sufficiency review, we review the evidence in a light that tends to support the finding of the disputed facts and disregard all evidence and inferences to the contrary. Lee Lewis Const., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001). If more than a scintilla of evidence exists, it is legally sufficient. Id. More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about a vital fact's existence. Id.

In considering a factual sufficiency challenge, we assess all the evidence, and we reverse the trial court's judgment only if the challenged finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Wal-Mart Stores, Inc. v. Garcia, 30 S.W.3d 19, 21 (Tex. App.--San Antonio 2000, no pet.). Under this analysis, we do not serve as a fact finder, pass upon the credibility of witnesses, or substitute our judgment for that of the trier of fact, even if there is conflicting evidence upon which a different conclusion could be supported. Garcia, 30 S.W.3d at 21.

Preservation of Error

Arambula contends in his brief that Tovar has not preserved his sufficiency complaints for appellate review. Tovar's motion for new trial asserts that the evidence is factually insufficient to support the damage findings and also that there is no evidence to support the findings. The motion for new trial briefly refers to each category of damages and the evidence, if any, Tovar contends the record contains in relation thereto "in such a way that the objection could be clearly identified and understood by the court." Tex. R. Civ. P. 321. Accordingly, Tovar's motion for new trial was sufficient to preserve error with regard to his sufficiency complaints with one exception. See Cecil v. Smith, 804 S.W.2d 509, 512 (Tex. 1991) (motion for new trial preserves legal sufficiency complaints); Tex. R. Civ. P. 324(b) (factual sufficiency complaints preserved by motion for new trial).

The jury awarded Arambula $210,000.00 for physical pain and mental anguish that, in reasonable probability, Arambula will sustain in the future. With regard to this damage element, Tovar asserted in his motion for new trial that the evidence is insufficient "to support the jury's award of damages for past and future mental pain and mental anguish." In order to be preserved, the issue on appeal must correspond to the issue presented in the motion for new trial. In re T.R.S., 931 S.W.2d 756, 758 (Tex. App.--Waco 1996, no writ). A motion which states one legal theory cannot be used to support a different legal theory on appeal. In re T.R.S., 931 S.W.2d at 758; D/FW Commercial Roofing Co. v. Mehra, 854 S.W.2d 182, 190 (Tex. App.--Dallas 1993, no writ).

In cases in which a jury awards damages in a broad form for mental anguish and physical pain, an appellant waives error on appeal if he attacks only the mental anguish award without attacking the award for physical pain. See Wal-Mart Stores, Inc. v. Garcia, 30 S.W.3d 19, 24 (Tex. App.--San Antonio 2000, no pet.). Similarly, in order to preserve an issue on appeal regarding a multi-element damage award, the motion for new trial must attack both elements of damages. By raising an issue in his motion for new trial regarding only the mental pain and mental anguish element, Tovar failed to attack the physical pain element and, therefore, failed to preserve this issue for our review.

Future Medical Expenses

Texas follows the reasonable probability rule for future damages arising from personal injuries. Wal-Mart Stores, Inc. v. Garcia, 30 S.W.3d at 24. The award of future medical expenses lies within the discretion of the jury. Id. No precise evidence is required; the jury may award such damages based upon the nature of the injury, the medical care rendered prior to trial, and the condition of the injured party at the time of trial. Id.

Tovar focuses on the success of Arambula's surgery; however, Dr. Pechero also testified that Arambula will always be at risk of re-injuring his back due to the nature of the surgery. Dr. Pechero testified that at times Arambula will experience some level of pain and discomfort that will require over-the-counter medications to remedy. Arambula testified that he continued to have pain in his back. Dr. Pechero agreed that the level of pain would vary depending on the amount of walking Arambula undertook, the way he slept, and the barometric pressure. The jury also heard evidence regarding the nature of the injury and the medical care rendered prior to trial. Finally, the jury saw a video of Arambula's surgical procedure to correct his extruding disk, which required the grafting of bone from his pelvis and the placement of permanent metal screws and rods in Arambula's back. Based on the record as a whole, the evidence was legally and factually sufficient to support the jury's award of $5,000 for future medical expenses.

Loss Earning Capacity in the Past

Arambula concedes that the only evidence regarding loss of earning capacity in the past places that loss in a range of between $14,497 and $17,452. Arambula relies, however, on the argument of Tovar's counsel during trial in which he suggested that an award of $25,000 for loss of earning capacity in the past would be fair and reasonable. Arambula contends that Tovar cannot take a position on appeal that is inconsistent with his position at trial. Nevertheless, our standard of review requires us to review the evidence, and the evidence is legally sufficient only if there is more than a scintilla of evidence to report the finding. Lee Lewis Const., Inc. v. Harrison, 70 S.W.3d at 782. In this case, the evidence is legally sufficient to support an award of only $17,452 in damages for loss of earning capacity in the past. Accordingly, the court suggests, under Texas Rule of Appellate Procedure 46.3, that the $25,000 awarded for loss of earning capacity in the past be remitted by $7,548.

Testimony of CPA

In his third issue, Tovar contends that the trial court erred in allowing Ricardo Cortez, the certified public accountant hired by Arambula to testify regarding loss of earning capacity in the future, to change his testimony at trial. Specifically, Tovar asserts the trial court erred in allowing Cortez to increase his damage estimate by approximately $500,000.

A trial court's decision to admit or exclude evidence is reviewed under an abuse of discretion standard. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). A trial court abuses its discretion when it acts without regard for any guiding rules or principles. Id. at 754. The guiding rules applicable in this case do not prevent experts from refining calculations and perfecting reports through the time of trial. Exxon Corp. v. West Texas Gathering Co., 868 S.W.2d 299, 304 (Tex. 1993). In this case, Cortez's report that had been disclosed during discovery showed his methodology in calculating loss of earning capacity in the future. Accordingly, Tovar possessed all of the information he needed to discredit Cortez's methodology and construct his own damages study. Cortez's methodology constituted the "substance" of his trial testimony. See id. The only change in Cortez's testimony during trial resulted from earlier testimony by a diesel mechanic professor regarding the hourly wages that a new mechanic would likely receive in the community and the hourly wages that an experienced mechanic would receive. Cortez substituted these hourly wages into his formula in place of the general statistical wage information upon which he previously relied. The trial court did not abuse its discretion in concluding that this was a refinement in Cortez's calculation. See Lubbock County v. Strube, 953 S.W.2d 847 (Tex. App.--Austin 1997, pet. denied) (allowing expert to re-calculate damages using same formula).

Conclusion

The court suggests, under Texas Rule of Appellate Procedure 46.3, that the $25,000 awarded to Arambula for loss of earning capacity in the past be remitted by $7,548. If the sum is not remitted, the judgment will be reversed, and the cause will be remanded to the trial court for a new trial. If a remittitur is timely filed within twenty days from the date of our judgment, the trial court's judgment will be reformed and will be affirmed as reformed.

Catherine Stone, Justice