IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
MARCH 6, 2001
______________________________
PRINCEWILL A. TATA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 337TH DISTRICT COURT OF HARRIS COUNTY;
NO. 817,720; HONORABLE DON STRICKLIN, JUDGE
_______________________________
Before QUINN and REAVIS and JOHNSON, JJ.
Appellant Princewill A. Tata has given notice of appeal from a conviction and sentence in cause number 817,720 in the 337th District Court of Harris County, Texas (the trial court). The trial court clerk's records were filed with the appellate court clerk on October 24, 2000. The clerk of this court is in receipt of a letter from the trial court reporter which advises that the reporter has not received a deposit toward transcription of the reporter's record on appeal, nor any designation of record on appeal. No reporter's record has been filed.
Pursuant to correspondence from the clerk of this court, counsel for appellant advised that an affidavit of indigency was forwarded to appellant at his place of incarceration, and that upon filing of the properly-executed affidavit, the trial court would appoint counsel to represent appellant on appeal. Subsequent inquiry into the status of the affidavit of indigency and appointment of counsel has not elicited a response from appellant or his counsel.
Accordingly, this appeal is abated and the cause remanded to the trial court. Tex. R. App. P. 37.3(a)(2). Upon remand, the judge of the trial court is directed to immediately cause notice to be given of and to conduct a hearing to determine: (1) whether appellant desires to prosecute this appeal; (2) if appellant desires to prosecute this appeal, then whether appellant is indigent, and if not indigent, whether counsel for appellant has abandoned the appeal; (3) if appellant desires to prosecute the appeal, whether appellant's present counsel should be replaced; and (4) what orders, if any, should be entered to assure the filing of appropriate notices and documentation to dismiss appellant's appeal if appellant does not desire to prosecute, or, if appellant desires to prosecute, to assure that the appeal will be diligently pursued. If the trial court determines that the present attorney for appellant should be replaced, the court should cause the clerk of this court to be furnished the name, address, and State Bar of Texas identification number of the newly-appointed or newly-retained attorney.
The trial court is directed to: (1) conduct any necessary hearings; (2) make and file appropriate findings of fact, conclusions of law and recommendations, and cause them to be included in a supplemental clerk's record; (3) cause the hearing proceedings to be transcribed and included in a reporter's record; and (4) have a record of the proceedings made to the extent any of the proceedings are not included in the supplemental clerk's record or the reporter's record. In the absence of a request for extension of time from the trial court, the supplemental clerk's record, reporter's record of the hearing and proceedings pursuant to this order, and any additional proceeding records, including any orders, findings, conclusions and recommendations, are to be sent so as to be received by the clerk of this court not later than April 16, 2001.
Per Curiam
Do not publish.
y's finding was supported by legally insufficient evidence, the trial court erred by denying Excel's motion. If the trial court so erred, its error without question led to its rendition of an improper judgment and thus requires reversal. TEX. R. APP. P. 44.1(a).
A legal sufficiency challenge will be sustained when, inter alia, the evidence offered to prove a vital fact is no more than a mere scintilla. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). More than a scintilla of evidence exists when the evidence rises to a level such that reasonable and fair-minded people could differ in their conclusions. Id.; Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). We will view the evidence in a light that tends to support the jury's finding and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001); Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex. 1992).
The jury charge defined pecuniary loss as "the loss of the care, maintenance, support, services, advice, counsel, and reasonable contributions of a pecuniary value, excluding loss of inheritance, that Shirley McDonald would, in reasonable probability, have received from Jason McDonald had he lived." (2) As noted, the jury found $150,000 pecuniary loss damages "sustained in the past," and $50,000 "in reasonable probability will be sustained in the future."
Jason was the youngest of McDonald's three sons. Evidence showed Jason had a close relationship with his mother. One of his friends testified that Jason would "drop everything" to help his mother when she needed help. Jason had helped his mother financially. His employer Olan Moore and other witnesses testified that Jason commonly gave his paychecks to his mother. (3) From the time Jason was twelve or thirteen years old, he had worked for Moore during the summers. At the time of his death, Jason was making $8 or $8.50 an hour, his take-home pay ranging from $220 to $300 a week, depending on the hours worked.
As Excel's summary of the evidence states, Jason also willingly and routinely helped his mother with household chores. He performed household maintenance and repair, cleaning, and lawn mowing, and put up the Christmas tree and lights.
As Excel also acknowledges, the evidence supports a finding that Shirley McDonald suffered some pecuniary loss during the nearly one-year period from her son's death to the date of the verdict. That is sufficient, McDonald argues, to defeat Excel's no-evidence challenge to the jury's finding that the loss amounted to $150,000. McDonald contends that proof of pecuniary loss in the wrongful death context is not susceptible "to the kind of pencil and paper calculation which might be used . . . in a commercial case." (4) She cites John Deere Co. v. May, 773 S.W.2d 369 (Tex.App.-Waco 1989, writ denied), in which the court upheld an award of pecuniary loss damages to a minor daughter for the death of her father despite the absence of testimony placing a specific monetary value on his parental services. Id. at 379-80.
The requirement that the amount of damage awards be supported by evidence is not limited to commercial cases. See, e.g., Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996) ("Not only must there be evidence of the existence of compensable mental anguish, there must also be some evidence to justify the amount awarded.") There can be little doubt that such a requirement applies to amounts awarded for the pecuniary loss element of wrongful death damages. See Moore, 722 S.W.2d at 687 (pecuniary loss damages represent "direct economic losses"); cf. C & H Nationwide, Inc. v. Thompson, 903 S.W.2d 315, 324 (Tex. 1994) (contrasting proof required for loss of inheritance damages with that for non-economic damages).
Viewing the evidence in the light most favorable to the verdict, the jury could have determined that Jason, in reasonable probability, would have contributed his paychecks to his mother. But even if he had continued to earn as much as $300 a week until the date of the verdict (5) and given it all to his mother, his contribution would not have totaled more than $15,000.
The jurors could apply their knowledge and experience to estimate the value of the household services Jason rendered his mother, without proof of their value. Missouri-Kansas-Texas R. R. Co. v. Pierce, 519 S.W.2d 157, 160 (Tex.Civ.App.-Austin 1975, writ ref'd n.r.e.); Arando v. Higgins, 220 S.W.2d 291 (Tex.Civ.App.-El Paso 1949, writ ref'd n.r.e.). A jury's discretion in doing so is not unlimited, however, and must be based on the evidence adduced. Pierce, 519 S.W.2d at 160. The evidence shows that Jason was extraordinarily diligent in helping his mother around the house but no evidence suggests that the nature or value of his services was out of the ordinary. No reasonable view of the evidence concerning Jason's services to his mother supports an estimated value even approaching $150,000 for the period before the verdict. We must agree with Excel that no evidence supports the jury's finding that McDonald suffered direct economic losses in the past of $150,000. We conclude the trial court erred by denying Excel's motion to disregard the finding, and we sustain Excel's issue on appeal.
When we reverse a trial court's judgment, normally it is our duty under Rule of Appellate Procedure 43.3 to render the judgment the trial court should have rendered. Tex. R. App. P. 43.3. As noted, Excel's brief prays only for rendition, asking that we render judgment eliminating the past pecuniary loss element of the recovery and the prejudgment interest on that amount. Excel acknowledges our authority under Rule 43.3(b) to remand for a new trial when the interests of justice require it. Excel argues against remand, pointing to the supreme court's discussion of its similar authority under Rule 60.3 in Kerr-McGee Corp. v. Helton, 133 S.W.3d 245, 258-60 (Tex. 2004); TEX. R. APP. P. 43.3, 60.3. It contends remand is no more appropriate here than in Helton. We disagree.
Helton is a natural gas lease drainage case. The plaintiff there relied on an expert witness to provide the only evidence of the amount of damages. The supreme court found the expert's testimony on that subject was unreliable and constituted no evidence. Concluding the plaintiff thus had failed to present any competent evidence of the amount of his damages, the court reversed the lower courts, and rendered a take-nothing judgment. Helton, 133 S.W.3d at 247.
Here, by contrast, Excel acknowledges that McDonald presented evidence supporting some award for past pecuniary loss. Under these circumstances, remand is appropriate. Because liability was contested at trial, we may not remand only for retrial of the damages. TEX. R. APP. P. 44.1(b); Estrada v. Dillon, 44 S.W.3d 558, 562 (Tex. 2001) (per curiam). Accordingly, the trial court's judgment is reversed and the cause is remanded for a new trial.
James T. Campbell
Justice
1. Shirley McDonald and Jason's father are divorced. The jury awarded him no
damages. He is not a party to this appeal.
2. See Moore v. Lillebo, 722 S.W.2d 683, 687 (Tex. 1986) (so defining pecuniary loss
for parent of adult child); Texas Pattern Jury Charges-General Negligence, PJC 9.5
(2003).
3. McDonald's cross-examination testimony indicated that Jason had not given her
his paycheck since October of 2002, when she obtained a better-paying job.
4. Excel's citations include a number of lost profits and condemnation cases. See,
e.g., Holt Atherton Industries, Inc. v. Heine, 835 S.W.2d 80 (Tex. 1992) (lost profits);
Callejo v. Brazos Electric Power Cooperative, Inc., 755 S.W.2d 73 (Tex. 1988)
(condemnation).
5. His employer testified Jason sometimes worked part-time during the school year.
There is no evidence to suggest Jason intended to continue full-time work after the
summer. All the evidence is that he intended to resume his college classes in the fall.