Kasey Schott v. Hubert Knight, G-P Development, Ltd. d/b/a Service Park, Central Parking Corporation, and Allright Parking System, Inc. a/k/a Central Parking System of Texas, Inc.--Appeal from 270th District Court of Harris County

Opinion issued December 20, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00727-CV

KASEY SCHOTT, Appellant

v.

HUBERT KNIGHT, G-P DEVELOPMENT LTD., D/B/A SERVICE PARK, CENTRAL PARKING CORPORATION AND ALLRIGHT PARKING SYSTEM A/K/A CENTRAL PARKING SYSTEM OF TEXAS, INC.,

Appellees

On Appeal from the 270th District Court

Harris County, Texas

Trial Court Cause No. 2004 01887

MEMORANDUM OPINION

In this automobile accident case, appellant, Kasey Schott ( Schott ) presents two issues contending that the jury s verdict of zero damages for her claims of past and future mental anguish is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.

We affirm.

Background

Schott sued appellees, Hubert Knight ( Knight ), G-P Development Ltd., d/b/a Service Park, Central Parking Corporation and Allright Parking System a/k/a Central Parking System of Texas, Inc. (collectively Central Parking ), to recover damages for personal injuries she sustained when the truck in which Schott and her family were riding was struck by a shuttle bus driven by Knight while he was in the employment of Central Parking. Liability was uncontested; the case proceeded to trial on the issue of damages only.

At trial, Dr. Harvey Rosenstock, the psychiatrist retained by appellees to evaluate Schott, testified that Schott suffered from mild post-traumatic stress disorder ( PTSD ). Dr. Rosenstock testified that the car accident was a precipitating factor for Schott s PTSD. Dr. Rosenstock evaluated Schott almost three years after the accident. Dr. Rosenstock testified that Schott reported to him that she still suffered from panic attacks, could not go out to socialize, experienced crying episodes, was terrified of driving, and continued to have dreams that her daughter was killed in a car accident. Dr. Rosenstock testified that his evaluation was based on what Schott reported to him and that he did not do an independent investigation to confirm what Schott told him.

According to Dr. Rosenstock, Schott s PTSD could be resolved in six months to two years with treatment. Dr. Rosenstock testified that such treatment would cost $10,800.

The jury awarded Schott $30,000 for past medical expenses, $10,800 for future medical expenses, and $10,000 for past physical pain. The jury awarded zero damages to Schott for future physical pain, for past and future physical impairment, and for past and future mental anguish.

In two issues, Schott challenges the jury s award of zero damages for past and future mental anguish asserting that the award is against the great weight and preponderance of the evidence as to be manifestly unjust.

Conflicting Jury Answers

In support of her challenge to the jury s zero damage award for past and future mental anguish, Schott asserts, The jury s verdict awarding future medical expenses for psychiatric treatment . . . but awarding nothing for past and future mental anguish is by definition against the great weight and preponderance of the evidence and is manifestly unjust. Schott points out that Dr. Rosenstock testified that her treatment for PTSD would cost $10,800, which is the same amount awarded by the jury for future medical expenses. Schott contends that, if the jury believed that she required psychiatric treatment for her PTSD, as indicated by the jury s award of $10,800 for future medical expenses, then she necessarily suffered compensable mental anguish damages.

Though phrased in terms of factual sufficiency challenges, Schott s substantive argument on this point is developed as a complaint that the jury s verdict contained conflicting answers. See Dori v. Bondex Int l, Inc., No. 11 04 00179 CV, 2006 WL 1554614 at *4 5 (Tex. App. Eastland June 8, 2006, no pet.) (mem. op.). Schott contends that the jury s award of future medical expenses cannot be reconciled with its award of zero damages for past and future mental anguish damages. Such an argument is not based on the record containing factually insufficient evidence to support the challenged award, but instead on a claimed inconsistency in the jury s findings. See id.

We agree with appellees that Schott has waived this complaint. Schott did not preserve error when she failed to object to the alleged conflict in the verdict before the trial court discharged the jury. // Oyster Creek Fin. Corp. v. Richwood Inv. II, Inc., 176 S.W.3d 307, 324 (Tex. App. Houston [1st Dist.] 2004, pet. denied); see Tex. R. Civ. P. 295. Because Schott did not timely raise her complaint, we do not reconcile the purported inconsistencies in the jury s verdict. Springs Window Fashions Div., Inc. v. Blind Maker, Inc., 184 S.W.3d 840, 867 (Tex. App. Austin 2006, pet. granted, judgm t vacated w.r.m.). As a result, we give effect to each jury finding and conduct our sufficiency review in the manner that we would had no conflict been raised. Id.; see Dori, 2006 WL 1554614 at *5.

Factual Sufficiency Challenge

Schott also contends that the zero damage award for past and future mental anguish damages is against the great weight and preponderance of the evidence because the evidence supporting her mental anguish claims was clear and uncontroverted and undisputed. Schott cites the testimony of Dr. Rosenstock detailing, as discussed above, the claimed manifestations and symptoms reported to him by Schott. She also cites her testimony detailing the same symptoms reported by her to Dr. Rosenstock. In addition, Schott relies on Dr. Rosenstock s diagnosis that she suffers from PTSD. Schott asserts, without authority, PTSD is mental anguish. When reviewing a challenge to the factual sufficiency of a jury s refusal to award damages, we consider and weigh all of the evidence, both in support of and against the findings, to decide whether the verdict should be set aside. Doctor v. Pardue, 186 S.W.3d 4, 17 (Tex. App. Houston [1st Dist.] 2006, pet. denied) (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)). We uphold the jury s verdict unless it is so against the great weight and preponderance of the evidence as to be manifestly unjust or shocking to the conscience. Id. We may not substitute our judgment for that of the jury, even if the evidence would clearly support a different result. Nip v. Checkpoint Sys., Inc., 154 S.W.3d 767, 769 (Tex. App. Houston [14th Dist.] 2004, no pet.).

The jury is the sole judge of the credibility of the witnesses and the weight to be given to the witness s testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). As factfinder, the jury is free to disbelieve expert witnesses. See Walker v. Ricks, 101 S.W.3d 740, 748 (Tex. App. Corpus Christi, 2003, no pet.); Waltrip v. Bilbon Corp., 38 S.W.3d 873, 882 (Tex. App. Beaumont 2001, pet. denied). Although it may not disregard objective symptoms of an injury, a jury may ignore a complaining party s subjective evidence. Gonzalez v. Wal-Mart Stores, Inc., 143 S.W.3d 118, 123 (Tex. App. San Antonio 2004, no pet.).

For these reasons, the process of awarding damages for amorphous injuries such as mental anguish is inherently difficult because the alleged injury is a subjective, unliquidated, nonpecuniary loss. Brookshire Grocery Co. v. Goss, 208 S.W.3d 706, 720 (Tex. App. Texarkana 2006, no pet.). Because there are no objective guidelines to assess the monetary equivalent to such injuries, the jury is given a great deal of discretion in awarding an amount of damages it deems appropriate. See Texarkana Mem l Hosp., Inc. v. Murdock, 946 S.W.2d 836, 841 (Tex. 1997). In short, when the fact of the injury and resulting damages chiefly depends on subjective evidence, appellate courts are reluctant to hold the non-findings of damages as against the great weight and preponderance of the evidence. Lara v. Weeks Marine, Inc., No. 04-06-00237-CV, 2007 WL 1540269, *2 (Tex. App. San Antonio May 30, 2007, no pet.) (mem. op.).

Here, Schott s challenge to the jury s refusal to award damages for past and future mental anguish is based on her subjective claims regarding how she has been effected by the automobile accident, or the testimony of Dr. Rosenstock, which, in turn, was based on Schott s subjective reports to him. Thus, Schott s credibility was key in this case. We note that the jury had before it evidence probative of Schott s credibility. Specifically, appellees introduced evidence that Schott had been convicted of theft of property valued between $500 and $1500 following the accident. Appellees also elicited testimony from Dr. Rosenstock that Schott had misrepresented to him the value of the property that she had stolen. Thus, given the subjective nature of the evidence underlying Schott s claim for mental anguish damages and the evidence casting some doubt on Schott s credibility, it was the jury s prerogative to disbelieve Schott s claims regarding the continuing psychological effects of the accident. See Cox v. Centerpoint Energy, Inc., No. 14-05-01130-CV, 2007 WL 1437519, at *6 7 (Tex. App. Houston [14th Dist.] May 17, 2007, no pet.) (mem. op.) (affirming zero damage award for future pain and mental anguish because jury was free to disbelieve plaintiff s subjective claims and doctor s testimony based entirely on plaintiff s reports); Gonzalez, 143 S.W.3d at 123 (recognizing that jury may ignore complaining party s subjective evidence); Waltrip v. Bilborn Corp., 38 S.W.3d 873, 880 n.1 (Tex. App. Beaumont 2001, pet. denied) (discussing that jury is free to believe or disbelieve plaintiff s subjective complaints of pain or testimony of any other witness, including the plaintiff s doctor, who testified he was relying on plaintiff s reports); Rivas v. Garibay, 974 S.W.2d 93, 96 (Tex. App. San Antonio 1998, pet. denied) (holding jury may disbelieve any witness, including a physician, even though that witness s testimony is not contradicted).

In addition, a jury may weigh testimony regarding previous or subsequent injury and its effect on the complaining party. Gonzalez, 143 S.W.3d at 123 24. Here, the jury heard that Schott had a troubling childhood. Schott s mother suffered from depression. Schott s father had a serious drinking problem and abused Schott s mother. When she was three, Schott witnessed her father drag her mother across sharp shards of oyster shells, leaving her mother mutilated. After her parents divorce, Schott spent a number of years in foster homes. Schott s brother committed suicide by hanging himself. Evidence also was presented that, following the automobile accident at issue, Schott s grandmother died, Schott was convicted of theft, and Schott broke her heel from falling from a shelf. Given this evidence, the jury may have attributed any mental anguish suffered by Schott to the other traumas she experienced rather than to the automobile accident.

We conclude that the jury s refusal to award damages for past and future mental aguish was not so against the great weight and preponderance of the evidence as to be manifestly unjust or shocking to the conscience. We hold that the evidence was factually sufficient to support the jury s zero damage award for past and future mental anguish.

We overrule Schott s first and second issues.

Conclusion

We affirm the judgment of the trial court.

Laura Carter Higley

Justice

Panel consists of Justices Taft, Hanks, and Higley.