Reversed and Remanded and Memorandum Opinion on Remand filed September 9, 2003.
In The
Fourteenth Court of Appeals
____________
NO. 14-96-01555-CV
____________
JUAN ANTONIO LOZANO, SR., BLANCA SAUREZ LOZANO, MONICA I. LOZANO, SANDRA WARNER, AND EDUARDO A. LOZANO, Appellants
V.
DEANA ANN LOZANO, Appellee
On Appeal from the 280th District Court
Harris County, Texas
Trial Court Cause No. 95-023500
M E M O R A N D U M O P I N I O N O N R E M A N D
This suit for interference with the possessory rights of a parent is before the court on remand from the supreme court. See Lozano v. Lozano, 52 S.W.3d 141 (Tex. 2001) (per curiam). In our original opinion, we concluded the evidence was legally insufficient to support the jury=s findings that appellants Juan Antonio Lozano, Sr., Blanca Suarez Lozano, Monica I. Lozano, Sandra Warner, and Eduardo A. Lozano (AAlex@) aided or assisted Juan Lozano, Jr., in taking, or retaining possession, or concealing the whereabouts, of Bianca Lozano. Lozano v. Lozano, 983 S.W.2d 787, 789, 792 (Tex. App.CHouston[14th Dist.] 1998), rev=d 52 S.W.3d 141 (Tex. 2001) (per curiam).[1] We therefore reversed the judgment of the trial court and rendered judgment for all appellants on the intentional interference claims of appellee Deana Lozano. Id. at 794. Deana obtained review, and the supreme court affirmed our judgment in favor of Sandra and Juan Senior, but reversed our judgment as to Blanca, Alex, and Monica, holding the evidence was legally sufficient to sustain the jury=s verdict, and remanded to this court to consider their remaining points of error. Lozano, 52 S.W.3d at 144.[2]
The following points of error are before the court on remand: (1) the legal and factual sufficiency of the evidence to support the jury=s findings of a causal link between Deana=s damages and Juan Junior=s violation of the court order providing for possessory interest in Bianca, (2) the factual sufficiency of the evidence to support the jury=s findings Blanca, Monica, and Eduardo (collectively, Aappellants@) aided or assisted Juan Junior in taking or retaining possession of Bianca in violation of the court order, (3) the legal and factual sufficiency of the evidence to support the jury=s findings appellants acted with malice, and (4) the legal and factual sufficiency to support the jury=s damages findings. We first address the legal sufficiency of the evidence of causation and conclude the evidence was legally sufficient. We then address the legal sufficiency of the evidence on damages.
Concluding the evidence was legally insufficient to support Deana=s future medical care damages, we remand on all damages because the charge did not segregate damages. See Texas Industries, Inc. v. Vaughan, 919 S.W.2d 798, 804 (Tex. App.CHouston [14th Dist.] 1996, writ denied) (holding, when jury charge does not segregate elements of damage and require a finding as to each one, but one element has no supporting evidence, case must be remanded on all damages); see also Harris County v. Smith, 96 S.W.3d 230, 235B36 (Tex. 2002) (in charge error case, remanding to trial court after concluding appellant was prevented from properly presenting case to appellate courts when trial court submitted broad form damages question with element for which evidence was legally insufficient). Remanding for a new trial on unliquidated damages, we also remand for a new trial on liability. See Tex. R. App. P. 44.1(b) (providing court may not order separate trial on unliquidated damages if liability contested). Given our resolution of the damages point of error, we need not address the remaining points of error.
FACTUAL AND PROCEDURAL BACKGROUND
The facts and procedural background are set forth at length in our original opinion and that of the supreme court. In the context of discussing the points of error, we set forth only those facts necessary to disposition of the cause.
DISCUSSION
Causation
The jury was instructed to find the Asum of money, if any, if paid now in cash, [that] would fairly and reasonably compensate Deana Lozano for the harm, if any, that resulted from the occurrence in question.@ In their first point of error, appellants challenge the legal and factual sufficiency of the evidence to support the causal link between appellants= conduct and appellee=s damages. In actions under former Family Code chapter 36, however, the relevant cause is violation of the court order, not the actions of those allegedly aiding and assisting the person violating the court order.
The statutory framework begins by defining the liability of the person who directly interferes with a parent=s possessory rights, in this case Juan Junior: AA person who takes or retains possession of a child or who conceals the whereabouts of a child in violation of a court order that provides for possessory interests in a child may be liable for damages to the person who is denied a possessory interest in the child.@ Act of May 19, 1983, 68th Leg., R.S., ch. 328, ' 1, sec. 36.02(a), 1983 Tex. Gen. Laws 1725, 1726 (recodified 1995) (current version at Tex. Fam. Code Ann. ' 42.002(a) (Vernon 2002)). Chapter 36 also provides for the joint liability of those who aid or assist the direct actor: AEach person who aids or assists in conduct for which a cause of action is authorized by Subsection (a) of this section is jointly and severably [sic] liable for damages.@ Id. ' 1, sec. 36.02(c) (current version at Tex. Fam. Code Ann. ' 42.003(a) (Vernon 2002)). Finally, Family Code section 36.03(a) ties damages to violation of the order providing for possessory interests in the child:
(a) Damages under this chapter may include:
(1) the actual costs and expenses of the petitioner in locating a child who is the subject of the court order;
(2) the actual costs and expenses of the petitioner in recovering possession of the child, if the petitioner is entitled to possession of the child;
(3) the actual costs and expenses, including attorney=s fees, of the petitioner in enforcing the court order that was violated;
(4) the actual costs and expenses, including attorney=s fees, of bringing the suit under this chapter; and
(5) the value of mental suffering and anguish incurred by the petitioner because of a violation of the court order.
Id. ' 1, sec. 36.03(a) (current version at Tex. Fam. Code Ann. ' 42.006(a) (Vernon 2002) (emphasis added).
Given the plain language of the statute, the only Aoccurrence in question@ that caused any damages is Juan Junior=s violation of the court order, not the actions taken by persons allegedly aiding or assisting Juan Junior. The undefined word Adamages@ in section 36.02(c) refers to the specific Adamages@ described in sections 36.02(a) and 36.03(a). Were the gravamen of the causation element the actions of the alleged assistants, the causation element and the aiding element would be redundant. Thus, our focus in analyzing causation is on whether Juan Junior=s actions caused Deana harm, not on whether appellants= actions caused Deana harm.
In reviewing a Ano evidence@ or legal sufficiency of the evidence point, we consider only the evidence and reasonable inferences that tend to support the jury=s findings, and we disregard all evidence and inferences to the contrary. Responsive Terminal Sys., Inc. v. Boy Scouts of Am., 774 S.W.2d 666, 668 (Tex. 1989); Penick v. Christensen, 912 S.W.2d 276, 292 (Tex. App.CHouston [14th Dist.] 1995, writ denied). An appellate court will conclude the evidence is legally insufficient if (1) there is a complete absence of evidence for the finding, (2) there is evidence to support the finding, but rules of law or evidence bar the court from giving any weight to the evidence, (3) there is no more than a mere scintilla of evidence to support the finding, or (4) the evidence conclusively establishes the opposite of the finding. See Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (citing Robert W. Calvert, ANo Evidence@ and AInsufficient Evidence@ Points of Error, 38 Tex. L. Rev. 361, 362B63 (1960)). If we find any evidence of probative force to support the finding, we overrule the point and uphold the finding. ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997) (citing S. States Transp., Inc. v. State, 774 S.W.2d 639, 640 (Tex. 1989)).
Deana testified that about a year before trial she first sought medical attention as a result of the disappearance of Bianca. She testified she had to miss work for court and depositions. When asked about the effect Bianca=s abduction had on her, Deana testified:
Well, it=s the most awful feeling in the world to have a part of your life taken away from you that can=t be replaced by money or another child or going on vacation. You can=t forget about it. It follows you wherever you go. I can=t eat. I can=t sleep. I have a problem concentrating at work.
. . .
It has totally changed my life and consumed my life to find her and I will never stop looking for her until I find her. I cannot B I can=t sleep at night. I can=t eat. I can=t concentrate at work. I have no wanting to go out and B and socialize with people >cause that=s all I have to talk about and this is very hard. I=ve had to seek counseling. I have to be on medication.
Deana=s family physician, Dr. P.T. Eichelberger also testified. Deana visited Eichelberger on February 20, 1995, before the abduction, and was treated for Adepression secondary to family affairs.@ Dr. Eichelberger prescribed an antidepressant drug (Effexor) for her. He stated that her depression increased substantially after the abduction of Bianca. In his entry dated March 22, 1996, Dr. Eichelberger indicated that Deana had been having frequent Apanic attack[s] relative to her daughter being taken from her by her ex husband.@ Deana told Dr. Eichelberger she had been to Mexico looking for Bianca and had not been taking her antidepressant medication. Dr. Eichelberger stated that if Deana had taken her medication, Ait would have improved her situation some what.@ Dr. Eichelberger advised Deana to start on the medication again.[3]
Finally, Deana=s attorney testified she had Adocumented the expenses that have been incurred in the attempts to locate this child and they have been enormous.@ The documents themselves, however, were excluded on appellants= hearsay objection.
Considering only the evidence and reasonable inferences that tend to support the jury=s findings, and disregarding all evidence and inferences to the contrary, we conclude the evidence was legally sufficient to support the jury=s findings of causation. We overrule appellant=s first point of error to the extent it challenges the legal sufficiency of the evidence. Because of our disposition of the damages issue below, we need not address the factual sufficiency of the evidence of causation.
Damages
In their fourth point of error, appellants argue the evidence was legally and factually insufficient to support the jury=s award of damages in question number 3, which provided:
What sum of money, if any, if paid now in cash, would fairly and reasonably compensate Deana Lozano for the harm, if any, that resulted from the occurrence in question?
Consider the elements of damages listed below and none other. Do not include interest on any amount of damages you find.
a. Actual costs and expenses incurred, including attorney=s fees.
b. Mental suffering and anguish.
c. Medical care in the future.
Answer in dollars and cents for damages, if any, that were sustained in the past and that, in reasonable probability, will be sustained in the future.
Answer: $1,000,000.00
Appellants objected to the question on several grounds. They objected to 3.a. because the court had excluded Deana=s offer of actual costs and expenses, and there was therefore no evidence of actual costs and expenses, and Deana had not segregated her attorney=s fees for the interference cause of action from fees for her defamation cause of action. Appellants objected to 3.c. because there was no evidence from which the jury could assess an amount of money for medical care. Appellants argued, AThe only evidence was with regard to future medical care or future health care services were [sic] by a psychologist who is not a medical doctor and cannot prescribe medicine.@
Applying the standards for reviewing legal sufficiency of the evidence set forth above, we conclude there was no evidence to support an award for medical care in the future. In considering the legal sufficiency of the evidence to support an award of future medical expenses, we must examine the entire record for any probative evidence and disregard all evidence to the contrary. Rosenboom Mach. & Tool v. Machala, 995 S.W.2d 817, 828 (Tex. App.CHouston [1st Dist.] 1999, pet. denied) (citing Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); City of San Antonio v. Vela, 762 S.W.2d 314, 320 (Tex. App.CSan Antonio 1988, writ denied)). Texas follows the Areasonable probability rule@ for future damages for personal injuries. Rosenboom, 995 S.W.2d at 828; Vela, 762 S.W.2d at 321. Under this rule, Texas courts have consistently held the award of future medical expenses rests within the sound discretion of the jury. Rosenboom, 995 S.W.2d at 828; Vela, 762 S.W.2d at 321. The jury can determine the amount of future medical expenses and care based on the injuries suffered, the medical care rendered before trial, the progress toward recovery under the treatment received, and the condition of the injured party at the time of trial. Rosenboom, 995 S.W.2d at 828; Vela, 762 S.W.2d at 321. To sustain an award of future medical expenses, however, (1) the plaintiff must present evidence to establish, in all reasonable probability, future medical care will be required, and (2) she must present evidence of the reasonable cost of that care. Rosenboom, 995 S.W.2d at 828; see also MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 654B55 (Tex. 1999) (stating rule regarding future damages generally).
Appellee identifies two sources of such evidence: Dr. Eichelberger and Dr. Kevin Jones.[4] Eichelberger testified Deana=s depression increased substantially after Bianca=s abduction. He expected her to require future medial treatment that was Aprobably going to be long term and this is going to be contingent upon the period of time before she=s able to get the child returned to her@ (emphasis added). Nevertheless, Eichelberger also testified that his records did not reflect any treatment for depression after the abduction in April, 1995. As set forth in the previous section, in his entry dated March 22, 1996, Dr. Eichelberger indicated Deana had been having frequent Apanic attack[s] relative to her daughter being taken from her by her ex husband.@ Deana also told Eichelberger she had been to Mexico looking for Bianca and had not been taking her antidepressant medication. Eichelberger said, if Deana had taken her medication, Ait would have improved her situation some what,@ and he advised Deana to start the medication again.
Although Eichelberger=s records for Deana=s treatment were placed into evidence, there is nothing in the record showing his charges. Eichelberger did not testify about his fees or whether they were reasonable and necessary.
Jones is a psychologist who first saw Deana on February 27, 1995, before the abduction. Dr. Jones stated Deana told him that she had been suffering from panic attacks as a result of her pending divorce from Junior and physical abuse by Junior. When asked whether in his opinion Deana would have a long range effect from the abduction, Jones responded, AOh, lifelong.@ When asked whether Deana would require future medical and psychological care, Dr. Jones stated:
That=s what I=m concerned about because not knowing kind of protracts this. We=re not sure what the status of Bianca is, whether she is dead or alive, where she is, if she=s okay or not. And if at some point in the future she finds out where she is and can=t get her back or whatever, it could rekindle all of this progress that she=s made.
Dr. Jones estimated that the cost of treatment by a psychologist for a person who had to be in prolonged treatment would be about $100.00 per hour and that five years treatment would be $25,000.00. There is no evidence of what Deana may have paid Jones for treatment after the April 7, 1995, abduction.[5]
The evidence in the present case is comparable to that held legally insufficient in Whole Foods Mkt. Southwest, L.P. v. Tijerina, 979 S.W.2d 768, 781B82 (Tex. App.CHouston [14th Dist.] 1998, pet. denied). In Whole Foods, the plaintiff=s expert, Dr. Newell, could not express an opinion based on reasonable medical probability as to whether the plaintiff, Tijerina, would suffer future complications as a result of the injury to her finger. Id. at 782. Newell=s deposition was read into the record, in which Newell stated if Tijerina were to undergo a second surgery, his fee would be $1,500.00. Id. This court held, in pertinent part, that ATijerina=s evidence at trial supporting her claim for future medical costs included Dr. Newell=s speculation, not based on a reasonable medical probability, that Tijerina might need a second surgery for $1,500.00 and her testimony regarding the amount and cost of Advil.@ Id. (emphasis added). This court held that it Awill not uphold an award of future medical costs based on speculation.@ Id. (citing Harvey v. Culpepper, 801 S.W.2d 596, 599 (Tex. App.CCorpus Christi 1990, no writ)). This court agreed with Whole Food=s contention there was no evidence to support the jury=s verdict for future medical costs in the amount of $20,000.00. Id. at 781.
Jones= testimony about the need for psychological care in the future is similarly speculative. We conclude the evidence was legally insufficient to support an award for future medical expenses.
Remand and Appellants= Third Point of Error
Because the trial court failed to segregate damages, the case must be remanded on all damages if we find reason to remand on one element of damages. See Vaughan, 919 S.W.2d at 804 (holding, when jury charge does not segregate elements of damage and require a finding as to each one and one element has no supporting evidence, case must be remanded on all damages); see also Smith, 96 S.W.3d at 235B36 (in charge error case, remanding to trial court after concluding appellant was prevented from properly presenting case to appellate courts when trial court submitted broad form damages question with element for which evidence was legally insufficient). We therefore remand for a new trial on all compensatory damages covered by question 3.
AThe court may not order a separate trial solely on unliquidated damages if liability is contested.@ Tex. R. App. P. 44.1(b). We therefore remand for a new trial on liability. Because of our disposition of appellants= point of error four, we need not address the remaining points of error.[6]
CONCLUSION
We remand for a new trial on Deana=s cause of action against Blanca, Alex, and Monica for aiding or assisting Juan Lozano, Jr., in taking, or retaining possession, or concealing the whereabouts, of Bianca Lozano.
/s/ John S. Anderson
Justice
Judgment rendered and Memorandum Opinion on Remand filed September 9, 2003.
Panel consists of Justices Anderson, Seymore, and Guzman.
[1] As we explained in our original opinion:
Juan Lozano and his daughter disappeared during early April, 1995. Before April 20, 1995, when the law changed, Texas Family Code Section 36.02(a) provided:
A person who takes or retains possession of a child or who conceals the whereabouts of a child in violation of a court order that provides for possessory interests in a child may be liable for damages to the person who is denied a possessory interest in the child.
Prior to April 20, 1995, Section 36.02(c) provided:
Each person who aids or assists in conduct for which a cause of action is authorized under Subsection (a) of this section is jointly and severally liable for damages.
Title 2 of the Family Code, which included Chapter 36, was repealed effective April 20, 1995. The Family Code was recodified by reenacting Title 2 effective April 20, 1995. [See Act of May 19, 1983, 68th Leg., R.S., ch. 328, ' 1, 1983 Tex. Gen. Laws 1725, 1726 (recodified 1995) (current version at Tex. Fam. Code Ann. '' 42.002, 42.003 (Vernon 2002))].
Lozano v. Lozano, 983 S.W.2d 787, 788 n.1 (Tex. App.CHouston [14th Dist.] 1998), rev=d, 52 S.W.3d 141 (Tex. 2001) (per curiam).
[2] In our original opinion, we also considered the legal and factual sufficiency of the evidence on Deana=s defamation claims against Sandra and Blanca. Lozano, 983 S.W.2d at 793B94. We held the evidence was legally and factually sufficient to support the defamation claim against Sandra, but legally insufficient to support the claim against Blanca. Id. We therefore affirmed the judgment against Sandra on Deana=s defamation claims, but rendered judgment for Blanca on Deana=s defamation claims. Id. at 794. The supreme court did not disturb these holdings and they are not before this court on remand.
[3] Dr. Eichelberger also testified that his records did not reflect any treatment for depression after the abduction in April, 1995. Dr. Eichelberger stated that Deana came in on July 14, 1995, for a tubercular test only. Deana saw Dr. Eichelberger three times after July 14, 1995, for ailments unrelated to depression or any psychological condition related to the abduction of Bianca. In reviewing the legal sufficiency of the evidence, however, we consider the evidence in a light most favorable to the verdict. Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex. 1992).
[4] In addition, we consider Deana=s testimony: AIt has totally changed my life and consumed my life. . . . I cannot B I can=t sleep at night. I can=t eat. I can=t concentrate at work. . . . I=ve had to seek counseling. I have to be on medication.@ See Rosenboom Mach. & Tool v. Machala, 995 S.W.2d 817, 828 (Tex. App.CHouston [1st Dist.] 1999, pet. denied) (stating jury had right to consider victim=s testimony regarding pain she had suffered).
[5] There is correspondence from PSA Case Management/John Hancock and from Cost Care indicating authorization for payment to Jones for services rendered to Deana.
[6] Appellants would be liable for exemplary damages only if appellants are found liable for damages. See Act of May 19, 1983, 68th Leg., R.S., ch. 328, ' 1, sec. 36.03(b), 1983 Tex. Gen. Laws 1725, 1727 (recodified 1995) (current version at Tex. Fam. Code Ann. ' 42.006(b) (Vernon 2002)). It would be premature to rule on the issue of exemplary damages at this time. See Texas Industries, Inc. v. Vaughan, 919 S.W.2d 798, 804 (Tex. App.CHouston [14th Dist.] 1996, writ denied).