DELIZA MENDOZA v. RICHARD SANDOVAL, ET AL.--Appeal from 28th District Court of Nueces County

NUMBER 13-03-359-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI EDINBURG

DELIZA MENDOZA, Appellant,

v.

RICHARD SANDOVAL, ET AL, Appellees.

On appeal from the 28th District Court

of Nueces County, Texas.

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

Before Chief Justice Valdez and Justices Hinojosa and Castillo

Opinion by Chief Justice Valdez

This is a restricted appeal of a no-answer default judgment granted in favor of appellees, Richard Sandoval and Cristina Escamilla, appearing individually and as next friend of her minor children Sebastian and Justin Escamilla, and against appellant, Deliza Mendoza. Appellant contends the following two errors are apparent on the face of the record and require a remand for a new trial: (1) there is no evidence that appellees medical bills and treatment were reasonable and necessary; and (2) there is no evidence to support the trial court s award of past and future pain and suffering or mental anguish. We affirm in part and reverse and remand in part.

I. Factual and Procedural Background

As this is a memorandum opinion and the parties are familiar with the facts, we will not recite the facts here except as necessary to advise the parties of the Court s decision and the basic reasons for it. See Tex. R. App. P. 47.4.

II. Analysis

Restricted Appeal

A restricted appeal is a direct attack on a judgment which affords an appellant the same scope of review as an ordinary appeal, that is, a review of the entire case. Diles v. Henderson, 76 S.W.3d 807, 809 (Tex. App. Corpus Christi 2002, no pet.). To prevail on her restricted appeal, // appellant must establish that: (1) she filed notice of the restricted appeal within six months after the judgment was signed; (2) she was a party to the underlying lawsuit; (3) she did not participate in the hearing that resulted in the judgment complained-of and did not timely file any post-judgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record. See Tex. R. App. P. 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004); Carmona v. Bunzl Distrib., 76 S.W.3d 566, 568 (Tex. App. Corpus Christi 2002, no pet.). The face of the record, for purposes of restricted appeal review, consists of all the papers on file in the appeal. Norman Communications v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam).

The record establishes, and appellees do not dispute, appellant satisfied the first three requirements for a restricted appeal; thus, only the fourth requirement is at issue.

1. Reasonable and Necessary Medical Treatment

In her first issue, appellant asserts there is no evidence that the medical bills and treatment appellees received was reasonable and necessary. Appellant s assertion is twofold; appellant asserts (1) appellees failed to comply with section 18.001 of the Texas Civil Practice and Remedies Code in introducing the medical records, and thus, they are not admissible and cannot support the judgment; and (2) even if the medical records offered were admissible, they only establish the amount charged or expended, not the reasonableness or necessity of the expenses.

Standard of Review

In a default judgment, the defendant's failure to answer operates as an admission of all material facts alleged in the plaintiff's petition except unliquidated damages. See Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992); First Nat'l Bank v. Shockley, 663 S.W.2d 685, 689 (Tex. App. Corpus Christi 1983, no writ) (stating damages for personal injuries are unliquidated). 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. See Texarkana Mem l Hosp., Inc. v. Murdock, 946 S.W.2d 836, 840 (Tex. 1997); Transp. Concepts, Inc. v. Reeves, 748 S.W.2d 302, 305 (Tex. App. Dallas 1988, no writ). The two ways in which a plaintiff can prove necessity of past medical expenses are (1) presenting expert testimony on the issues of reasonableness and necessity, or (2) presenting an affidavit prepared and filed in compliance with section 18.001 of the Texas Civil Practice and Remedies Code. See Walker v. Ricks, 101 S.W.3d 740, 746-47 (Tex. App. Corpus Christi 2003, no pet.); Rodriguez-Narrea v. Ridinger, 19 S.W.3d 531, 532-33 (Tex. App. Fort Worth 2000, no pet.). Proof of amounts charged or paid for past medical expenses is not proof of the reasonableness of those expenses. See Walker, 101 S.W.3d at 746-47. Further, evidence that medical expenses are reasonable and customary is no evidence concerning the "reasonable necessity" of those medical expenses and will not alone support an award. See id.; Carr v. Galvan, 650 S.W.2d 864, 868 (Tex. App. San Antonio 1983, writ ref'd n.r.e.) (reiterating that reasonableness of the medical charges amounts to no evidence of the need for the treatment rendered).

Analysis

Section 18.001 provides in relevant part:

Unless a controverting affidavit is filed as provided by this section, an affidavit that the amount a person charged for a service was reasonable at the time and place that the service was provided and that the service was necessary is sufficient evidence to support a finding of fact by judge or jury that the amount charged was reasonable or that the service was necessary.

. . . .

The party offering the affidavit in evidence or the party's attorney must file the affidavit with the clerk of the court and serve a copy of the affidavit on each other party to the case at least 30 days before the day on which evidence is first presented at the trial of the case.

Tex. Civ. Prac. & Rem. Code 18.001 (b), (d) (Vernon 2004). Section 18.001 does not speak to the admissibility of the evidence; rather, it creates an exception to the general rule requiring expert testimony to establish the reasonableness and necessity of expenses. See Walker, 101 S.W.3d at 746. So long as the requirements of section 18.001 are met and the opponent does not file a controverting affidavit, a party may dispense with the inconvenience and expense of obtaining an expert to testify as to the necessity and reasonableness of the expenses. See id.

At the default judgment hearing, appellees did not provide an expert to establish the reasonableness and necessity of the past medical expenses nor did they submit an affidavit in attempt to comply with section 18.001 to dispense with the necessity of providing an expert witness to establish the reasonableness and necessity of the past medical expenses. Therefore, we conclude appellees failed to carry their burden to establish the reasonableness and necessity of the past medical expenses, and we sustain appellant s first contention.

Because of our disposition of appellant s first contention, we need not address her second contention regarding medical records, and we sustain her first issue on appeal. // See Tex. R. App. P. 47.4.

2. Damages

In her second issue, appellant asserts there is no evidence to support the trial court s award of future medical expenses and mental anguish. Specifically, appellant asserts:

the medical records submitted for the parents have no indication of future treatments or problems, and no medical records at all were introduced as regards [to] the children s claims here. It is apparent from the face of the record that there was no evidence to support an award for mental anguish or past and future suffering on behalf of appellees.

Standard of Review

When reviewing a no evidence point, we must view the evidence in a light that tends to support the finding of a disputed fact and disregard all evidence and inferences to the contrary. See Mission Petroleum Carriers, Inc. v. Solomon, 106 S.W.3d 705, 717 (Tex. 2003). A no evidence point may be sustained only when the record discloses (1) there is a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of the vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998). If there is any evidence of probative force to support the finding, the point must be overruled and the finding upheld. Sherman v. First Nat'l Bank, 760 S.W.2d 240, 242 (Tex. 1988).

Analysis

We have concluded appellees presented no evidence of the reasonableness and necessity of the pled past medical expenses. We extend that analysis and conclusion to the award of future medical expenses. See Walker, 101 S.W.3d at 746-47; Jackson v. Gutierrez, 77 S.W.3d 898, 902 (Tex. App. Houston [14th Dist.] 2002, no pet.). We sustain appellant s contention with regard to future medical expenses.

Mental anguish damages cannot be awarded without either "direct evidence of the nature, duration, or severity of [plaintiffs'] anguish, thus establishing a substantial disruption in the plaintiffs' daily routine", or other evidence of "'a high degree of mental pain and distress' that is 'more than mere worry, anxiety, vexation, embarrassment, or anger'". Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995); Minn. Life Ins. Co. v. Vasquez, 133 S.W.3d 320, 324 (Tex. App. Corpus Christi 2004, pet. filed). Appellees failed to present the requisite evidence necessary to a mental anguish claim. The only evidence presented by appellees to establish mental anguish was a yes response to counsel s questions to the respective appellees: i.e., did [plaintiff/appellee] endure mental anguish in the past and will [plaintiff/appellee] continue to suffer mental anguish in the future? These responses did not sufficiently establish that there was a substantial disruption in appellees daily routines, nor did they show the nature, duration or severity of appellees anguish. We sustain appellant s contention.

We accordingly sustain appellant s second issue on appeal.

III. Conclusion

We reverse the trial court s award of damages and remand the case back to the trial court for further consideration of unliquidated damages. See Holt Atherton Indus., 835 S.W.2d at 86 ( when an appellate court sustains a no evidence point after an uncontested hearing on unliquidated damages following a no-answer default judgment, the appropriate disposition is a remand for a new trial on the issue of unliquidated damages. ). However, appellant may not question liability on remand as she admitted liability for the injuries suffered by appellees by failing to answer the petition. See id. at 83. Thus, we affirm the trial court s judgment regarding liability.

Rogelio Valdez,

Chief Justice

Memorandum Opinion delivered and filed

this 28th day of April, 2005.