Ofelia D. Garcia v. Carlos Alfredo Cerda and Eliseo Cerda, Jr.Appeal from 96th District Court of Tarrant County (memorandum opinion )
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In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-12-00168-CV
OFELIA D. GARCIA, APPELLANT
V.
CARLOS ALFREDO CERDA AND ELISEO CERDA, JR., APPELLEES
On Appeal from the 96th District Court
Tarrant County, Texas
Trial Court No. 096-246065-10, Honorable R. H. Wallace, Presiding
July 15, 2013
MEMORANDUM OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Appellant, Ofelia D. Garcia, appeals the trial court’s granting of a judgment in
favor of Eliseo Cerda, Jr.1 for medical bills incurred by Cerda while he was a minor. We
will reverse and remand with instructions.
1
Eliseo Cerda, Jr.’s father, Eliseo Cerda, Sr., was not a party to this action at the
time of trial. Therefore, all references to “Cerda” will refer to Eliseo Cerda, Jr.
Factual & Procedural Background2
Initially, we note that Garcia is not contesting the sufficiency of the evidence and,
therefore, we will address only the facts necessary for the disposition of the issues
raised.
Garcia and Cerda were involved in a vehicle accident on February 14, 2009.
Cerda was a passenger in a car driven by his brother, Carlos Alfredo Cerda. At the time
of the accident, Cerda was 16 years of age.
Cerda received medical care, via
chiropractic treatment, through April 15, 2009. Cerda was a minor the entire time he
was receiving medical treatment.
During the trial, Garcia advised the trial court that she was objecting to proof of
the cost of medical treatment received by Cerda because he was a minor at the time of
treatment.
In furtherance of that trial position, Garcia objected to the exhibits and
testimony tending to prove what medical treatment was received, and, when her
objection was overruled, obtained a running objection to that evidence. At the close of
evidence, the trial court presented trial counsel with the court’s proposed charge to the
jury.
The proposed jury question concerning Cerda’s damages inquired about
“Reasonable expenses of necessary medical care incurred in the past.”
Garcia
objected to the submission of the issue contending that all of those amounts were
2
Pursuant to the Texas Supreme Court’s docket equalization efforts, this case
was transferred to this Court from the Second Court of Appeals. See TEX. GOV’T CODE
ANN. § 73.001 (West 2013). That being so, we must decide this case “in accordance
with the precedent of the transferor court under principles of stare decisis” if our
decision otherwise would have been inconsistent with the precedent of the transferor
court. TEX. R. APP. P. 41.3; Phillips v. Phillips, 296 S.W.3d 656, 672 (Tex.App.—El
Paso 2009, pet. denied).
2
incurred when Cerda was a minor, and, as such, Cerda did not have a right to recover
those damages. The trial court overruled the objection.
The jury subsequently returned their answers to the jury questions and awarded
for Cerda $400 for physical pain and mental suffering sustained in the past. The jury
also awarded Cerda $4,708 for reasonable expenses of necessary medical care
incurred in the past. Garcia filed a motion requesting the trial court to disregard the
jury’s answer to question 4(e), regarding the reasonable expenses of necessary medical
care incurred in the past.
The trial court overruled the motion to disregard by
subsequently entering judgment in favor of Cerda as supported by the jury’s answers.
This appeal followed.3
Garcia presents two issues on appeal.
First, Garcia contends that the trial
court’s submission of the jury question regarding reasonable and necessary medical
care Cerda incurred in the past was reversible error. Second, Garcia contends that the
trial court committed reversible error by failing to disregard the jury’s answer regarding
the reasonable and necessary medical care incurred in the past. Agreeing with Garcia’s
first issue, we reverse and remand this matter to the trial court.
Analysis
Garcia’s first issue concerns the court’s charge and the jury question involving
Cerda’s medical expenses in the past. Garcia insists the question should not have
3
Judgment was also entered in favor of Carlos Alfredo Cerda. Garcia has not
appealed that portion of the judgment.
3
been submitted to the jury.4 We review claimed error in the court's charge under an
abuse of discretion standard. See Tex. Dep't of Human Servs. v. E.B., 802 S.W.2d 647,
649 (Tex. 1990). A trial court abuses its discretion if it acts in an arbitrary or
unreasonable manner, or if it acts without reference to any guiding rules or principles.
See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). A
trial court's clear failure to analyze or apply the law correctly constitutes an abuse of
discretion. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding);
Cayton v. Moore, 224 S.W.3d 440, 445 (Tex.App.--Dallas 2007, no pet.).
Texas law has long held that the cause of action for recovery of reasonable and
necessary medical expenses incurred by a minor belongs to the minor’s parents. See
Sax v. Votteiler, 648 S.W.2d 661, 666 (Tex. 1983) (citing Tex. & P. Ry. Co. v. Morin, 66
Tex. 225, 18 S.W. 503 (1886)). The Second Court of Appeals followed this holding in
Morrell v. Finke, 184 S.W.3d 257, 290-91 (Tex.App.—Fort Worth 2005, pet. denied). A
child may, however, recover damages for pain and suffering after he reaches the age of
majority. Id. at 290.
The record before this Court clearly demonstrates that Cerda was a minor at the
time of the accident. Further, the record demonstrates that all of the medical treatment
he received in connection with the accident was rendered while he was a minor. Under
these facts, the trial court acted without reference to any guiding rules or principles
when it overruled Garcia’s objection to the jury question concerning the reasonable and
necessary medical expenses incurred by Cerda. See Downer, 701 S.W.2d at 241-42.
This failure of the trial court to analyze and apply the law correctly was an abuse of its
4
Cerda, did not favor us with a response brief.
4
discretion. See Walker, 827 S.W.2d at 840; Cayton, 224 S.W.3d at 445. Accordingly,
we sustain Garcia’s first issue.
Additionally, we note that Garcia has not attacked the award to Cerda of $400 for
pain and suffering sustained in the past. Such an award is permissible. See Morrell,
184 S.W.3d at 290. Accordingly, that portion of this judgment is affirmed. Finally, our
consideration of Garcia’s second issue is pretermitted as a result of our holding herein.
See TEX. R. APP. P. 47.1.
Conclusion
We reverse the judgment of the trial court and remand this cause to the trial court
with instructions to enter a judgment in favor of Cerda for pain and suffering sustained in
the past along with pre-judgment interest, in conformity with this opinion.
Mackey K. Hancock
Justice
5
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