Opinion
No. 05-03-01642-CV
Opinion Filed December 17, 2004.
On Appeal from the 134th District Court, Dallas County, Texas, Trial Court Cause No. 00-03028-G.
Affirm in part, Reverse and Remand in part.
Before Justices RICHTER, FITZGERALD and LANG.
MEMORANDUM OPINION
Dennis McDonald appeals the trial court's judgment entered on the jury verdict in his personal injury case. In nine points of error, McDonald contends the trial court abused its discretion in refusing to: 1) submit his issue on reasonable and necessary medical expenses to the jury; 2) grant a new trial, and 3) render judgment for the prejudgment and postjudgment interest on the damages assessed by the jury. We affirm the trial court's judgment as to damages and, because we agree the court erred in failing to grant prejudgment and postjudgment interest, we reverse the judgment in part and remand to the trial court for the further proceedings necessary to calculate the prejudgment and postjudgment interest.
McDonald was injured in an automobile accident. Defendant Taber stipulated to liability and the issues of damages were submitted to the jury. The jury awarded $10,000 for past physical pain and mental anguish and $500 for past and future disfigurement. However, the jury awarded zero damages for future physical pain and mental anguish, past loss of earnings or earning capacity, and future loss of earnings or earning capacity. In accordance with the jury verdict, the court granted judgment for $10,500 in damages. Although, McDonald requested prejudgment and postjudgment interest in his petition, the trial court did not award either.
Medical Expenses
In his first two points of error, McDonald asserts the trial court abused its discretion when it did not submit his issue for reasonable and necessary medical expenses to the jury. However, because the record does not contain a jury issue for reasonable and necessary medical expenses, we conclude McDonald has waived his issues regarding the medical expenses.
The record indicates that, after testimony was presented and before the closing arguments were made, the judge and counsel reviewed the proposed charge. The judge gave both parties an opportunity to object to the proposed charge. At that time, McDonald only objected to the appearance of fax information at the bottom of the document. Later, after a recess, McDonald objected to the omission of an issue for reasonable and necessary medical expenses. Although during the recess McDonald could have prepared a handwritten question on medical expenses and submitted it to the judge, there is no indication in the record that McDonald tendered to the trial court a written question regarding medical expenses for submission to the jury. The record reflects that McDonald acknowledged there was no written medical expense question before the court by stating "I do not know why it's not in his charge or not in the charge I submitted to the Court." After this admission, the judge ruled that the charge would be submitted as "approved and agreed by parties yesterday and again this morning."
McDonald did not present the trial court or this Court with any evidence that he submitted a written medical expense issue. Although McDonald raised the trial court's failure to submit his medical expense issue as a grounds for new trial, no evidence of his written medical expense issue was attached to his motion for new trial. In his request for the preparation of the clerk's record to be filed with this Court, McDonald requested the record include "Plaintiff's refused issue on medical expenses" and "Defendant's proposed charge." The clerk's record, filed on January 13, 2004, includes the clerk's certification that all documents specified by the appellate procedure rules and requested by the parties are contained in the record, except for "Plaintiff's Refused Issue on Medical Expenses (not in file)" and "Defendant's Proposed Charge (not in file)." McDonald's counsel attached a June 4, 2004 affidavit to his June 7, 2004 appellate reply brief stating he submitted an issue of reasonable and necessary medical expenses to the trial court. This affidavit does not appear in the reporter's or the clerk's record and no proposed or refused medical expense issue is attached to this affidavit.
Civil procedure rule 278 provides, "Failure to submit a question shall not be deemed a ground for reversal of the judgment, unless its submission, in substantially correct wording, has been requested in writing and tendered by the party complaining of the judgment. . . ." Tex. R. Civ. P. 278. If a party fails to make a written submission, any error by the trial court in not submitting the question is waived. See Johns v. Ram-Forwarding, Inc. 29 S.W.3d 635, 638 (Tex.App.-Houston [1st Dist.] 2000, no pet.). The record contains no written submission of the medical expense issue. Therefore, McDonald has not preserved his first two points of error for appellate review. Accordingly, we overrule points of error one and two regarding the trial court's failure to submit a jury question on reasonable and necessary medical expenses.
Damages
In points of error four through nine, McDonald contends that the trial court abused its discretion in overruling his motion for new trial. Specifically, he argues that the evidence presented in this case was both legally and factually sufficient to support much greater awards for past physical pain and mental anguish, for past and future disfigurement, and for past loss of earnings or earning capacity. We disagree.
When a party attacks the legal sufficiency of an adverse fact finding to an issue on which he has the burden of proof, he must show "on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue." Dow Chemical Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). In reviewing the legal sufficiency challenge, we review the record for evidence that supports the finding, while ignoring all evidence to the contrary. If there is no evidence to support the finding, then we review the entire record to see if the contrary proposition is established as a matter of law. Id.
If a party, with the burden of proof, attacks the factual sufficiency of the evidence supporting the finding, he must show on appeal that the adverse finding is against the great weight and preponderance of the evidence. Id. at 242. We weigh all of the evidence "and can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust." Id. at 242.
In points of error four and five, McDonald attacks the sufficiency of the evidence for the $10,000 award for past physical pain and mental anguish. McDonald testified that his pain was severe immediately after the injury. Within a few months after the accident the pain lessened to a level of "eight to ten" on a scale of one to ten and was at a level of "six or seven" at the time of trial. However, Dr. Frederick, who performed the hand surgery after the accident, testified that such pain levels were contrary to his reports and his examinations of McDonald. McDonald admitted that he had not seen Dr. Frederick or any other hand specialist for over four years. Also other medical records differed with McDonald's testimony regarding his pain levels.
Evidence regarding McDonald's level of pain was not undisputed. The evidence does not show that, as a "matter of law," McDonald is entitled to a greater award for past physical pain and mental anguish. Likewise, in light of the conflicting evidence, the jury's award for pain and mental anguish is not against the great weight and preponderance of the evidence. In this case, the jury, as the factfinder, was the sole judge of the credibility of the witnesses and the weight to be given their testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). Accordingly, the jury could believe one witness, disbelieve another, and resolve inconsistences in testimony. Selectouch Corp. v. Perfect Starch, Inc. 111 S.W.3d 830, 838 (Tex.App. 2003, no pet.); McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). As the fact finder, the jury had great discretion in fixing the amount of the damage award. McGalliard, 722 S.W.2d at 697. Accordingly, we overrule McDonald's points of error four and five.
In his points of error six and seven regarding the jury award of $500 for past and future disfigurement, McDonald neither refers to the record regarding evidence of disfigurement nor points out evidence that would support a greater amount for disfigurement. Accordingly, he has waived his points of error that the evidence is legally and factually sufficient to support a greater award for disfigurement. See Tex.R.App.P. 38.1; Murrco Agency, Inc. v. Ryan, 800 S.W.2d 600, 607 (Tex.App. 1990, no writ). His argument solely consists of computing the value of the $500 award spread over a twenty-five year period. However, McDonald concedes that the amount of damages for disfigurement is not based upon any objective measure and that the amount is usually left to the discretion of the jury. Pentes Design, Inc. v. Perez, 840 S.W.2d 75, 80-1 (Tex.App. 1992, writ denied); Lloyd Elec. Co., Inc. v. Millet, 767 S.W.2d 476, 484 (Tex.App. 1989, no writ). The amount of damages for disfigurement is within the province of the jury. Lloyd, 767 S.W.2d at 484. We overrule McDonald's points of error six and seven.
In his points of error eight and nine regarding the "zero" damage finding for past loss of earnings or earning capacity, McDonald asserts that an exhibit received into evidence "reflects that he lost accrued sick leave of $243.68 for a total of $2680.48." McDonald testified that he used eleven days of sick leave because of the accident. However, McDonald did not testify that he had exhausted his sick leave or that he would receive payment for unused sick leave. Instead, McDonald testified that he did not lose salary or wages because of the accident. Even if the exhibit is evidence of loss of sick leave benefits, his own testimony negates that use of sick leave constitutes a loss of earnings. See Lamb v. Franklin, 976 S.W.2d 339, 344 (Tex.App. 1998, no pet.).
Finally, loss of earning capacity is distinguished from loss of earnings and is defined as "the diminished earning power of the plaintiff directly resulting from the injuries sustained." Metropolitan Life Ins. Co. v. Haney, 987 S.W.2d 236, 244, (Tex.App.-Houston [14th Dist.] 1999, pet. denied). McDonald points to no evidence in the record regarding his loss of earning capacity. Therefore, McDonald has waived his point of error that the evidence is legally and factually sufficient to support a greater amount of damages for loss of past earning capacity. See Tex.R.App.P. 38.1(h); Murrco, 800 S.W.2d at 607.
We conclude that McDonald did not establish as a matter of law damages in an amount exceeding the jury findings and that the jury's findings were not against the great weight and preponderance of the evidence. Accordingly, the trial court did not abuse its discretion in denying McDonald's motion for new trial.
Prejudgment and Postjudgment Interest
Finally, we consider McDonald's point of error three that the trial court erred in failing to include prejudgment and postjudgment interest in its judgment. McDonald included his request for prejudgment and postjudgment interest in his pleadings. After the trial court failed to include any amount for prejudgment and postjudgment interest, McDonald brought the omission to the trial court's attention through a motion for new trial, stating the court abused its discretion in refusing to render judgment for prejudgment and postjudgment interest. We sustain McDonald's point of error three to the extent we find the trial court erred in not awarding prejudgment and postjudgment interest at the lawful rates.
The trial court's prejudgment interest award is reviewed under an abuse of discretion standard. See Wilmer-Hutchins Independent School Dist. v. Smiley, 97 S.W.3d 702,706 (Tex.App. 2003, pet. denied). To determine if a trial court abused its discretion, we must decide if the trial court acted without reference to any guiding rules or principles. See Downer v. Aquamarine Operators, Inc. 701 S.W.2d 238, 241-42 (Tex. 1985), cert.denied, 476 U.S. 1159 (1986). A judgment in a personal injury case earns prejudgment interest. Tex. Fin. Code Ann. § 304.102 (Vernon Supp. 2004-05). Such interest accrues "on the amount of a judgment during the period beginning on the earlier of the 180th day after the date the defendant receives written notice of a claim or the date the suit is filed and ending on the day preceding the date judgment is rendered." Tex. Fin. Code Ann. § 304.104 (Vernon Supp. 2004-05). McDonald is entitled to the prejudgment interest as a matter of law. Accordingly, we find the trial court erred in not awarding prejudgment interest. See Olympia Marble Granite v. Mayes, 17 S.W.3d 437, 441, (Tex.App.-Houston [1st Dist.] 2000, no pet.).
The postjudgment interest rate must be specified in a money judgment. Tex. Fin. Code Ann. § 304.001 (Vernon Supp. 2004-05). Whether or not specifically awarded in the judgment, appellant is entitled to postjudgment interest because it is a creation of statute. See El Universal, Compania Periodistica Nacional, S.A. de C.V. v. Phoenician Imports, Inc., 802 S.W.2d 799, 804 (Tex.App. 1990, writ denied). Therefore, we conclude the trial court erred in not awarding postjudgment interest.
Accordingly, we affirm the trial court's judgment as to damages. We reverse the trial court's judgment as to its failure to award prejudgment and postjudgment interest and remand to the trial court for the calculation of the correct amounts of prejudgment and postjudgment interest due to appellant McDonald.