City of San Antonio and Rolando C. Lopez v. Claudio Esparza, Jr. and Minerva Esparza--Appeal from 408th Judicial District Court of Bexar County

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MEMORANDUM OPINION

 

No. 04-04-00631-CV

 

CITY OF SAN ANTONIO,

Appellant

 

v.

 

Claudio ESPARZA, Jr. and Minerva Esparza,

Appellees

 

From the 408th Judicial District Court, Bexar County, Texas

Trial Court No. 2001-CI-12800

Honorable Rebecca Simmons, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: December 21, 2005

 

AFFIRMED AS MODIFIED

The City of San Antonio appeals from a judgment rendered in favor of Claudio Esparza, Jr., and Minerva Esparza. On appeal, the City argues the following: (1) that the jury s findings of zero dollars for certain damage elements fatally conflict with its findings of future damages for the same elements; and (2) that the evidence is legally and factually insufficient to support the jury s findings on certain damage elements. We agree in part and modify the judgment. As modified, we affirm the trial court s judgment.

Background

The Esparzas were involved in an automobile accident with a vehicle driven by a City employee. They sued the City for their personal injuries. At trial, the jury found Claudio Esparza to be 35% negligent and the City to be 65% negligent. The jury found the following damages for Claudio Esparza:

a.Reasonable and necessary medical expenses incurred in the past. . . . . . . . $57,500

b. Reasonable and necessary medical expenses that, in reasonable

probability, will be sustained in the future. . . . . . . . . . . . . . . . . . . . . . . . . . $20,000

c. Physical pain and mental anguish sustained in the past. . . . . . . . . . . . . . . . . $8,000

d. Physical pain and mental anguish that, in reasonable

probability, will be sustained in the future. . . . . . . . . . . . . . . . . . . . . . . . . . $25,000

e. Physical impairment sustained in the past. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -0-

f. Physical impairment that, in reasonable probability,

will be sustained in the future. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $30,000

g. Loss of earning capacity in the past. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $8,000

h. Loss of earning capacity that, in reasonable probability,

will be sustained in the future. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$100,000

TOTAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $248,500

The jury also found the following damages for Minerva Esparza:

a. Reasonable and necessary medical expenses incurred in

the past. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $43,000

b. Reasonable and necessary medical expenses that, in

reasonable probability, will be sustained in the future. . . . . . . . . . . . . . . . . $10,000

c. Physical pain and mental anguish sustained in the past. . . . . . . . . . . . . . . . $10,000

d. Physical pain and mental anguish that, in reasonable

probability, will be sustained in the future. . . . . . . . . . . . . . . . . . . . . . . . . . $10,000

e. Physical impairment sustained in the past. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -0-

f. Physical impairment that, in reasonable probability,

will be sustained in the future. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$8,000

g. Loss of earning capacity in the past. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -0-

h. Loss of earning capacity that, in reasonable probability,

will be sustained in the future. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$10,000

TOTAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $91,000

 

The trial court entered judgment on the verdict, awarding Claudio Esparza $161,525 and Minerva Esparza $59,150.

The City appeals, raising two issues concerning the damage awards. First, the City contends certain jury findings irreconcilably conflict. Second, the City argues that certain findings are not supported by legally and factually sufficient evidence.

Irreconcilable Conflict of Jury s Answers

The City contends that the following answers by the jury irreconcilably conflict: (1) that Claudio Esparza sustained no damages for past physical impairment, but $30,000 for future physical impairment; (2) that Minerva Esparza sustained no damages for past physical impairment, but $8,000 for future physical impairment; and (3) that Minerva Esparza sustained no damages for past lost earning capacity, but $10,000 for future lost earning capacity. The City, however, has failed to preserve this issue for appeal.

Texas Rule of Civil Procedure 295 provides the following:

If the purported verdict is defective, the court may direct it to be reformed. If it is incomplete, or not responsive to the questions contained in the court s charge, or the answers to the questions are in conflict, the court shall in writing instruct the jury in open court of the nature of the incompleteness, unresponsiveness, or conflict, provide the jury such additional instructions as may be proper, and retire the jury for further deliberations.

 

Tex. R. Civ. P. 295 (emphasis added). To preserve error, a party must object to allegedly conflicting answers before the jury is discharged. City of Port Isabel v. Shiba, 976 S.W.2d 856, 860 (Tex. App. Corpus Christi 1998, pet. denied); Torres v. Caterpillar, Inc., 928 S.W.2d 233, 244 (Tex. App. San Antonio 1996, writ denied); Roling v. Alamo Group (USA), Inc., 840 S.W.2d 107, 110 (Tex. App. Eastland 1992, writ denied).

The City argues that it preserved error by raising the irreconcilable conflict issue in its motion for new trial. The only authority the City cites in support of its argument is St. Paul Fire & Marine Insurance Co. v. Murphree, 357 S.W.2d 744 (Tex. 1962). In that case, the issue before the supreme court was whether the trial court s entry of judgment on conflicting findings constituted fundamental error; if the trial court s action constituted fundamental error, then the issue could not have been waived. Id. at 748-49. Although in its discussion the court noted that the appellant admits that it did not assign in its motion for new trial any error as to conflict, the court did not consider whether assigning error in a motion for new trial would be sufficient to preserve error. Id. at 748. Instead, the issue before the court was whether entry of judgment on conflicting findings amounted to fundamental error. Id. In considering that issue, the supreme court held that entry of judgment on conflicting findings was not fundamental error; as such, error could be waived. Id. We decline to hold, based on dicta in Murphree, that a complaint regarding irreconcilable conflict in jury answers can be preserved in a motion for new trial, especially in light of rule 295 and the numerous cases that have held that an objection must be made before the jury is discharged. See, e.g., City of Port Isabel, 976 S.W.2d at 860; Torres, 928 S.W.2d at 244; Roling, 840 S.W.2d at 110.

The City also urges waiver is inapplicable in this case because even if it had objected to the jury s answers on the damages questions, an instruction by the trial court could not have cured the error. According to the City, such an instruction by the trial court would have amounted to an impermissible comment on the weight of the evidence. Further, the City contends the conflict in this case is not a true conflict because discerning whether a conflict exists requires examination of the evidence. We have found no authority for these arguments, and the City has not cited any. Thus, we decline to hold that waiver is inapplicable in this case. As such, because the City did not object to the jury s answers before the jury was discharged, we hold that the City waived any error on appeal.

Legal and Factual Sufficiency

The City argues that the evidence is legally and factually insufficient as to three elements of

damages. 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 Constr., 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. at 782-83. 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). 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; and, we must defer to the jury s resolution of conflicts in the evidence. TA Operating Corp. v. Solar Applications Eng g, Inc., No. 04-04-00180-CV, 2005 WL 2401879, at *6 (Tex. App. San Antonio Sept. 28, 2005, no pet. h.).

First, the City points out that the jury s finding of $57,500 in past medical expenses for Claudio Esparza exceeds the Esparzas proof. Indeed, the Esparzas concede that the jury s finding of $57,500 exceeds their proof of $51,459.56. Thus, the judgment should be modified to reflect that Claudio Esparza recover past medical expenses in the amount of $51,459.56, of which $33,448.71 would be the City s responsibility.

Second, the City contends that the evidence was insufficient to demonstrate a causal nexus between the accident and Minerva Esparza s medical expenses. As to Minerva Esparza s future medical expenses, the City argues that the only evidence was the testimony of her surgeon, Dr. Garcia, that she would probably require a knee replacement in the future. But, as the City points out, Dr. Garcia also testified that regardless of the trauma she suffered in the accident, the knee-replacement surgery would have been necessary because Minerva had significant pre-existing degeneration in her knee. In their brief, the Esparzas do not dispute the City s argument or point to any evidence of future medical expenses other than the cost of knee replacement surgery. Thus, we find no evidence to support the jury s answer that Minerva Esparza will sustain future medical expenses of $10,000. Therefore, the judgment should be modified to reflect that Minerva Esparza recover nothing for her future medical expenses.

As to Minerva Esparza s past medical expenses, the City argues that a portion of her medical bills relate to a second knee surgery that was not caused by the accident. Dr. Garcia testified that he performed two knee surgeries on Minerva Esparza. The first surgery was to repair a torn meniscus that was caused by the accident. The second surgery was to repair a completely different torn meniscus that occurred after the first surgery. According to Dr. Garcia, the second torn meniscus was indirectly related to the accident:

Q: How does the second tear indirectly relate to the first as you ve indicated in your testimony?

A: Well, you re treating you have treated somebody for a first tear, right? You have removed one tear. So what they do, they go to physical therapy, and they can tear it more, the same meniscus, right?

Q: Yes.

A: So because you re treating him for the first one that s directly related to the accident

Q: Yes.

A: you get a second tear trying to improve the first one.

Q: Oh, okay.

A: You see what I m saying?

Q: Yes.

A: That s why I said indirectly.

Q: Okay. Is that common to occur?

A: It can occur, yes. It can occur.

Q: All right. So so I guess the first tear, it made the meniscus more susceptible to additional tearing?

A: It can because, remember, we have to take part of it out. So if you wind up with half of a meniscus, so it s easier to injure it now.

Q: I see.

A: So and that s probably what happened to her.

Q: All right.

A: Not that she injured it at home, but it could have been physical therapy with all the exercises they give you and all that.

Q: And physical therapy is necessary to treat

A: Oh, yeah. It s a must. Yeah.

Q: All right.

A: It s a you know. That s necessary for a post-op knee, yeah.

A plaintiff may recover only for those injuries caused by the event made the basis of the suit. Texarkana Mem l Hosp. Inc. v. Murdock, 946 S.W.2d 836, 839-40 (Tex. 1997). A claim for past medical expenses must be supported by evidence that such expenses were reasonably necessary for the plaintiff to incur as a result of her injuries. Walker v. Ricks, 101 S.W.3d 740, 746 (Tex. App. Corpus Christi 2003, no pet.). Here, Minerva Esparza s treating physician testified that the first meniscus tear, which was directly caused by the accident, made her more susceptible to a second tear, thus indirectly necessitating the second surgery. This is sufficient evidence of causation.

Third, the City argues the evidence is insufficient to support the jury s finding that Minerva Esparza would sustain a loss of future earning capacity. The measure of lost earning capacity is the plaintiff s diminished earning power directly resulting from the injuries she sustained. Strauss v. Continental Airlines, Inc., 67 S.W.3d 428, 435 (Tex. App. Houston [14th Dist.] 2002, no pet.). In a personal injury suit, the amount which the plaintiff might have earned in the future is always uncertain and must be left largely to the sound judgment and discretion of the jury. McIver v. Gloria, 140 Tex. 566, 169 S.W.2d 710, 712 (1943). Even when the injuries are of such a serious and permanent nature that loss of earning capacity is the necessary result, proof is required to show the extent and amount of the damages. Id. The plaintiff is not required to prove the exact amount of her future earning capacity, but only the facts from which the jury, in the exercise of sound judgment and discretion, can determine the proper amount. Id. at 712-13.

Minerva Esparza testified that she babysits children in her home. After her first knee surgery, she did not work for three months and, after her second knee surgery, she did not work for two weeks. At the time of trial, she was babysitting children in her home. The record contains no evidence from which the jury could conclude Minerva would not be able to continue babysitting in her home. Thus, there is no evidence of loss of future earning capacity. The judgment should, therefore, be modified to reflect no recovery for Minerva for loss of future earning capacity.

Conclusion

Based on the foregoing, we hold that the City waived its first issue. With respect to its second issue, we find no evidence to support the jury s findings related to Claudio Esparza s medical expenses, Minerva Esparza s future medical expenses, and Minerva Esparza s loss of future earning capacity. Thus, the judgment should be modified to reflect the following: (1) that Claudio Esparza recover $51,459.56 for his medical expenses, of which $33,448.71 would be the City s responsibility; (2) that Minerva Esparza recover nothing for her future medical expenses, and (3) that Minerva Esparza recover nothing for her loss of future earning capacity. As modified, we affirm the judgment of the trial court.

Karen Angelini, Justice