TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-97-00256-CV
Sharon Washington, Appellant
v.
Theresa Sanchez, Appellee
NO. 230,441, HONORABLE ORLINDA L. NARANJO, JUDGE PRESIDING
BACKGROUND
On the morning of January 8, 1996, Sanchez was stopped at a stop sign preparing to turn right. Washington, thinking that Sanchez was at a yield sign, did not stop her vehicle and collided with the rear of Sanchez's stopped car. Washington testified that she was traveling around twenty miles per hour when she hit Sanchez and described the impact as "a typical bumping [of] a fender from the rear." Washington also testified that she repeatedly asked Sanchez at the scene of the accident if she was injured, and Sanchez replied "no." However, Sanchez testified that she began feeling pain in her neck and lower back several hours after the accident. Two days later, she visited Dr. Thomas Schwab, who diagnosed her with a sprained neck and back and referred her to a physical therapist.
The trial court granted Sanchez's motion for a directed verdict, finding that Washington was negligent as a matter of law. The only question that was submitted to the jury was the amount of monetary damages, if any, necessary to compensate Sanchez for her injuries resulting from the accident. The jury answered zero, declining to award Sanchez damages for reasonable expenses for past medical care or for pain and suffering. Rather than requesting a new trial, Sanchez moved for judgment n.o.v., which the trial court granted. Disregarding the jury's failure to find damages, the trial court awarded Sanchez $2,102 for medical expenses and $6,200 for pain and suffering. In four points of error, Washington contends on appeal that the trial court erred by: (1) directing a verdict on the issue of negligence; (2) granting Sanchez's motion for judgment n.o.v. on the issue of damages; (3) rendering judgment for medical expenses; and (4) awarding damages for Sanchez's pain and suffering. Because of our disposition of points of error two, three, and four, we need not address Washington's first point of error.
DISCUSSION
A trial court may render judgment n.o.v. only if a directed verdict would have been proper. See Tex. R. Civ. P. 301; Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex. 1991). A motion for judgment n.o.v. should be granted when the evidence is conclusive and one party is entitled to prevail as a matter of law. See John Masek Corp. v. Davis, 848 S.W.2d 170, 173 (Tex. App.--Houston [1st Dist.] 1992, writ denied). In order to uphold a trial court's judgment n.o.v., the reviewing court must determine that no evidence supports the jury's findings. See Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227 (Tex. 1990); Cannon v. ICO Tubular Servs., Inc., 905 S.W.2d 380, 386 (Tex. App.--Houston [1st Dist.] 1995, no writ). In deciding a no-evidence point, the appellate court must consider only the evidence and inferences tending to support the jury's verdict and disregard all evidence and inferences to the contrary. See Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995); Russell v. Ramirez, 949 S.W.2d 480, 491 (Tex. App.--Houston [14th Dist.] 1997, no writ). If more than a scintilla of evidence supports the jury finding, it must be upheld. See Crye, 907 S.W.2d at 499. The evidence supporting a finding amounts to more than a scintilla if reasonable minds could arrive at the finding given the facts proved in the particular case. Id.
Given the standard of review, the only way the trial court could have properly disregarded the jury's failure to find damages and substituted its own findings would have been if the evidence conclusively established, as a matter of law, that as a result of the accident Sanchez suffered damages in the amounts of $2,102 for medical bills and $6,200 for pain and suffering. Thus, the issue for this Court to decide is whether the evidence established as a matter of law that Sanchez incurred these damages as a result of the accident with Washington. For the reasons discussed herein, we hold that it does not.
To prove her damages, Sanchez introduced into evidence medical bills from the physician and physical therapist showing charges of $2,102. While her treating physician and physical therapist did not testify at trial, Sanchez introduced their affidavits setting forth the amount of her past medical expenses. See Tex. Civ. Prac. & Rem. Code Ann. § 18.001 (West 1997). The affidavits also stated that the amount was reasonable and the services necessary. Washington did not file controverting affidavits. Section 18.001, in relevant part, provides:
(b) 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 a judge or jury that the amount charged was reasonable or that the service was necessary.
See Id. § 18.001(b). Section 18.001, however, does not state that the affidavit evidence is conclusive, nor does it establish causation. Beauchamp v. Hambrick, 901 S.W.2d 747, 749 (Tex. App.--Eastland 1995, no writ).
Sanchez asserts that causation was established in a "number of ways." Sanchez introduced the records of Dr. Schwab, which indicated that Sanchez came to see him as a result of injuries sustained in an accident on January 8, 1996. In addition, she introduced the medical bills from her visits to the physical therapist who treated her at Dr. Schwab's request. Those records similarly reflect that her treatment was for injuries received in an accident on January 8, 1996. Finally, Sanchez testified that the accident caused her injuries which occasioned the medical bills from both Dr. Schwab and the physical therapist. This evidence, however, all stems from Sanchez's self-interested statements. As such, it does not establish causation as a matter of law but merely creates a fact issue for the jury. See Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990) (citing Cochran v. Wool Growers Cent. Storage Co., 166 S.W.2d 904, 908 (Tex. 1942)); Schwartz v. Pinnacle Communications, 944 S.W.2d 427, 434 (Tex. App.-- Houston [14th Dist.] 1997, no writ). Furthermore, there was evidence that Sanchez had seen a doctor for back pain approximately eight years prior to the accident. The jury is the sole judge of the credibility of witnesses and the weight to be given their testimony. See Western Atlas Int'l, Inc. v. Wilson, 930 S.W.2d 782, 784 (Tex. App.--Tyler 1996, writ denied). Accordingly, the jury could have disbelieved that Sanchez's medical expenses resulted from the accident with Washington.
Moreover, there was evidence to support the jury's failure to find that Sanchez had been injured as a result of the accident. Washington testified that Sanchez told her at the scene of the accident that she was not hurt. Also at that time, Sanchez told the police officer that she did not know if she was hurt. She did not go to the hospital following the accident. Sanchez did not even see a doctor for two days, and the doctor's records indicate that the attorney representing her referred her to the doctor. Furthermore, Sanchez testified that she did not take the medicine that the doctor prescribed for pain. Sanchez did not miss a day of work, nor did she indicate to anyone at work that she needed, or was receiving, medical treatment. Consequently, we conclude that the jury could have been persuaded that Sanchez was uninjured in the accident.
The trial court also erred in awarding Sanchez damages for pain and suffering. The amount of damages to be awarded is a question of fact for the jury to determine. See Scharer v. John's Cars, Inc., 776 S.W.2d 228, 231 (Tex. App.--El Paso 1989, writ denied). A trial court may not substitute its own findings in place of those of the jury unless the evidence clearly establishes as a matter of law that such an award is required. See Scharer, 776 S.W.2d at 231; Brownsville & Matamoros Bridge Co. v. Null, 578 S.W.2d 774, 780 (Tex. Civ. App.--Corpus Christi 1978, writ ref'd n.r.e.). Sanchez, however, did not prove that she was entitled to damages for pain and suffering as a matter of law. The record contains conflicting evidence regarding pain and suffering and whether Sanchez even suffered injuries as a result of the accident. Most importantly, there was no evidence establishing as a matter of law that the $6,200 which the trial court awarded was appropriate compensation for her pain and suffering, if any.
CONCLUSION
Not only did Sanchez fail conclusively to establish damages as a result of the accident, but the record contains evidence from which the jury could have failed to find damages. At most, the trial court could have granted Sanchez a new trial, but rendition of judgment n.o.v. was erroneous under these facts. We sustain Washington's second, third, and fourth points of error and reverse the judgment n.o.v. of the trial court. In the absence of cross-points sufficient to prevent an affirmance of the judgment had one been entered on the jury's verdict, we render judgment in accordance with the jury's verdict that Sanchez take nothing. See McDade v. Texas Commerce Bank, Nat'l Ass'n, 822 S.W.2d 713, 720 (Tex. App.--Houston [1st Dist.] 1991, writ denied).
Marilyn Aboussie, Justice
Before Justices Powers, Aboussie and B. A. Smith
Reversed and Rendered
Filed: July 2, 1998
Do Not Publish
causation. Beauchamp v. Hambrick, 901 S.W.2d 747, 749 (Tex. App.--Eastland 1995, no writ).
Sanchez asserts that causation was established in a "number of ways." Sanchez introduced the records of Dr. Schwab, which indicated that Sanchez came to see him as a result of injuries sustained in an accident on January 8, 1996. In addition, she introduced the medical bills from her visits to the physical therapist who treated her at Dr. Schwab's request. Those records similarly reflect that her treatment was for injuries received in an accident on January 8, 1996. Finally, Sanchez testified that the accident caused her injuries which occasioned the medical bills from both Dr. Schwab and the physical therapist. This evidence, however, all stems from Sanchez's self-interested statements. As such, it does not establish causation as a matter of law but merely creates a fact issue for the jury. See Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990) (citing Cochran v. Wool Growers Cent. Storage Co., 166 S.W.2d 904, 908 (Tex. 1942)); Schwartz v. Pinnacle Communications, 944 S.W.2d 427, 434 (Tex. App.-- Houston [14th Dist.] 1997, no writ). Furthermore, there was evidence that Sanchez had seen a doctor for back pain approximately eight years prior to the accident. The jury is the sole judge of the credibility of witnesses and the weight to be given their testimony. See Western Atlas Int'l, Inc. v. Wilson, 930 S.W.2d 782, 784 (Tex. App.--Tyler 1996, writ denied). Accordingly, the jury could have disbelieved that Sanchez's medical expenses resulted from the accident with Washington.
Moreover, there was evidence to support the jury's failure to find that Sanchez had been injured as a result of the accident. Washington testified that Sanchez told her at the scene of the accident that she was not hurt. Also at that time, Sanchez told the police officer that she did not know if she was hurt. She did not go to the hospital following the accident. Sanchez did not even see a doctor for two days, and the doctor's records indicate that the attorney representing her referred her to the doctor. Furthermore, Sanchez testified that she did not take the medicine that the doctor prescribed for pain. Sanchez did not miss a day of work, nor did she indicate to anyone at work that she needed, or was receiving, medical treatment. Consequently, we conclude that the jury could have been persuaded that Sanchez was uninjured in the accident.