Amber M. Cate v. Carolyn S. Posey

AFFIRM in Part, REVERSE in Part, and REMAND; Opinion Filed December 4, 2018.

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-01216-CV

AMBER M. CATE, Appellant
V.
CAROLYN S. POSEY, Appellee

On Appeal from the 298th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-16-10278-M

MEMORANDUM OPINION
Before Justices Lang, Fillmore, and Schenck
Opinion by Justice Schenck
The trial court entered a no-answer default judgment against appellant Amber M. Cate in

a suit brought by appellee Carolyn S. Posey for injuries sustained in an automobile accident. Cate

brings this restricted appeal and urges in six issues that the default judgment should be overturned

because appellee Carolyn S. Posey failed to comply with service of citation rules and the evidence

is insufficient to support the damages awarded. We affirm in part and reverse and remand in part.

Because all issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.

BACKGROUND

Posey sued Cate on August 22, 2016, alleging she suffered injuries and incurred damages

caused by Cate’s negligence. The petition stated that Cate could be served at an address in Irving,

Texas. On August 24, 2016, a citation issued to Cate at the address cited in the petition. The
return of service dated September 12, 2016, indicates that the citation, original petition and request

for disclosure were personally delivered to Cate at 618 Oakridge Lane, Irving, Texas. Cate failed

to answer, and on February 28, 2017, the trial court entered an interlocutory default judgment

against her as to liability. On April 28, 2017, the trial court conducted an evidentiary hearing on

unliquidated damages. Posey testified at that hearing. She described the extent to which the

accident and the injuries she suffered have affected her, which we detail in our sufficiency analysis

below. At the conclusion of the hearing, the trial court entered a final default judgment awarding

Posey $8,153 for past medical expenses, $2,500 for future medical expenses, $10,000 for past pain,

$5,000 for past mental anguish, $5,000 for future pain, $10,000 for past physical impairment, and

$10,000 for future physical impairment, plus interest and costs of court. Cate subsequently filed

a notice of restricted appeal.

DISCUSSION

I. Restricted Appeal

In her first issue, Cate asserts she is entitled to review by restricted appeal. A restricted

appeal is a direct attack on the trial court’s judgment that affords an appellant the same scope of

review as an ordinary appeal, that is, review of the entire case. See Gunn v. Cavanaugh, 391

S.W.2d 723, 724 (Tex. 1965). In a restricted appeal, a party must satisfy four elements to obtain

reversal of the underlying judgment: (1) a notice of the restricted appeal must be filed within six

months after the date of the judgment; (2) by a party to the suit; (3) who 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 must be apparent on

the face of the record. TEX. R. APP. P. 26.1(c), 30; Ins. Co. of State of Pa. v. Lejeune, 297 S.W.3d

254, 255 (Tex. 2009). The face of the record, for purposes of a restricted appeal review, consists

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of all papers filed in the appeal, including the reporter’s record. Norman Commc’ns v. Tex.

Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997).

Cate filed her notice of restricted appeal within six months of the final default judgment,

she is a party to the suit and she did not participate in the default hearings and did not file any post-

judgment motions or request findings of fact and conclusions of law. Thus, the issue presented in

this case is whether there is error apparent on the face of the record.

For the reasons specified herein, we conclude Cate has established that there is error

apparent on the face of the record as to the damage awards for past and future medical expenses.

There is not error apparent on the face of the record, however, as to service or the remaining

damages. Accordingly, we sustain Cate’s first issue as to damages for past and future medical

expenses and overrule her first issue as to the remaining damages and as to service.

II. Service of Citation

In her second issue, Cate urges there is error on the face of the record because the return of

service contains an address that differs from the address on the citation. Strict compliance with

the rules governing service of citation is mandatory if a default judgment is to withstand an attack

on appeal. Primate Constr. Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994). Failure to comply

with these rules constitutes error on the face of the record. Id. at 153. Rule 107 of the Texas Rules

of Civil Procedure governs the return of service and provides in relevant part as follows:

The return of the officer or authorized person executing the citation shall be
endorsed on or attached to the same; it shall state when the citation was served and
the manner of service and be signed by the officer officially or by the authorized
person. The return of citation by an authorized person shall be verified.

TEX. R. CIV. P. 107. If any of the requirements of rule 107 are not met, the return is fatally defective

and will not support a default judgment under direct attack. Travieso v. Travieso, 649 S.W.2d 818,

820 (Tex. App.—San Antonio 1983, no writ). Strict compliance, however, does not require

obeisance to the minutest detail. Williams v. Williams, 150 S.W.3d 436, 443–44 (Tex. App.—
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Austin 2004, pet. denied). As long as the record as a whole shows that the citation was served on

the defendant, service of process will not be invalidated. Id. at 444.

Cate contends that the citation was defective because the return of service and the citation

contain different addresses.1 Specifically, Cate argues that because the address on the return of

service does not match the address on the citation, service did not strictly comply with the rules

governing a valid return of citation. We disagree. Although it is clear from the record that the

address on the return of service differs from the address in the citation, controlling authority

provides that the citation and return need not recite the same address. TEX. R. CIV. P. 107; Myan

Mgmt. Grp. L.L.C. v. Adam Sparks Family Revocable Trust, 292 S.W.3d 750, 754 (Tex. App.—

Dallas 2009, no pet.). In fact, rule 107 does not even require that the return include an address at

all. TEX. R. CIV. P. 107; Myan Mgmt., 292 S.W.3d at 754. Nor does rule 106, governing the

method of service, state that when a party is personally served, as in this case, service must be at

the address listed in the citation. TEX. R. CIV. P 106; Then West, Inc./Bait House, Inc. v. Sorrells,

No. 05-01-01874-CV, 2002 WL 1397477, at *4 (Tex. App.—Dallas June 28, 2002, no pet.) (not

designated for publication).

Moreover, in this case, it is clear that the return strictly complies with the express

requirements of rule 107. The return states that Cate was served by personal delivery at the time

and date recited. Significantly, Cate does not dispute that she was personally served at the address

stated in the return of service. See Silver B & Laviolette, LLC v. GH Contracting, Inc., No. 03-10-

00091-CV, 2010 WL 4053791, at *3 (Tex. App.—Austin Oct. 12, 2010, no pet.) (mem. op.).

Accordingly, we conclude that the return meets the standard of strict compliance and that there is

1
The citation was directed to Amber M. Cate, and it listed her address as 2835 Pritchett Dr., Irving, TX 75061. The return of service shows
it was executed at 618 Oakridge Lane, Irving, TX 75061.

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nothing on the face of the record that demonstrates defective service. We overrule Cate’s second

issue.

III. Sufficiency of Evidence of Damages

In her third through sixth issues, Cate urges there is error on the face of the record because

the evidence presented is insufficient to support the damages awarded.2

A. Standard of Review

The legal and factual sufficiency of the evidence to support an award of unliquidated

damages may be challenged on appeal from a no-answer default judgment. Argyle Mech., Inc. v.

Unigus Steel, Inc., 156 S.W.3d 685, 687 (Tex. App.—Dallas 2005, no pet.). Where a specific

attack is made upon the sufficiency of the evidence to support the trial court’s determination of

damages in a default judgment, the appellate court must review the evidence produced. Dawson

v. Briggs, 107 S.W.3d 739, 751 (Tex. App.—Fort Worth 2003, no pet.).

We will sustain a legal sufficiency or “no evidence” challenge if the record shows one of

the following: (1) a complete absence of a vital fact; (2) rules of law or evidence bar the court 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 scintilla; or (4) the evidence establishes conclusively the opposite of

the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). We consider the

evidence in the light most favorable to the judgment and indulge every reasonable inference that

supports it. See id. at 821–22. In reviewing a factual sufficiency challenge, we examine all the

evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241–42 (Tex. 2001). We will reverse only

if the finding is against the great weight and preponderance of the evidence. Id.

2
Cate does not challenge the award of $10,000 for past physical pain.

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 B. Past and Future Medical Expenses – Cate’s Third Issue

Cate contends Posey’s evidence of medical expenses does not comply with the affidavit

requirement of section 18.001 of the Texas Civil Practices and Remedies Code, and in the absence

of comporting affidavits, she is required to use expert testimony to prove her medical expenses

were reasonable and necessary. Cate is correct. A claim for past medical expenses must be

supported by evidence that such expenses were reasonable and necessary as a result of the

injury. See Texarkana Mem’l Hosp., Inc. v. Murdock, 946 S.W.2d 836, 840 (Tex. 1997). A default

judgment does not relieve a plaintiff of this burden. Jackson v. Gutierrez, 77 S.W.3d 898, 902–03

(Tex. App.—Houston [14th Dist.] 2002, no pet.). A plaintiff can prove reasonableness and

necessity of past medical expenses through (1) expert testimony on the issues of reasonableness

and necessity or (2) an affidavit prepared and filed in compliance with section 18.001 of the Texas

Civil Practice and Remedies Code. Murdock, 946 S.W.2d at 840.

Cate did not present expert testimony on the reasonableness and necessity of past medical

expenses. Rather, she presented a Cost of Services Affidavit for medical services she received

from K-Clinic. No controverting affidavit was filed. Consequently, the affidavit will support a

finding that the amount charged was reasonable and the service was necessary, if it states the

amount charged for a service was reasonable at the time and place that the service was provided

and that the service was necessary. TEX. CIV. PRAC. & REM. CODE ANN. § 18.001(b). In addition,

the affidavit must: (1) be taken before an officer with authority to administer oaths; (2) be made

by: (A) the person who provided the service; or (B) the person in charge of records showing the

service provided and charge made; and (3) include an itemized statement of the service and the

charge. Id. § 18.001(c).

The affidavit Posey presented supports a finding that the amount charged was reasonable

at the time and place the service was provided and that the service was necessary. This evidence

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was uncontroverted. Accordingly, the affidavit complies with section 18.001(b) and is legally

sufficient. See City of Laredo v. Limon, No. 04-12-00616-CV, 2013 WL 5948129, at *6 (Tex.

App.—San Antonio Nov. 6, 2013, no pet.) (mem. op.) (An uncontroverted affidavit under section

18.001(b) provides legally sufficient evidence to support a jury’s finding that the amount charged

for a service was reasonable and necessary). Nevertheless, the evidence is factually insufficient

to support the award of $8,153 for past medical expenses. Although the affidavit states it was

taken before a notary public for the State of Texas, was made by a custodian of the records of K-

Clinic and states that an itemized statement of the service and charge for service K-Clinic provided

to Posey is attached thereto, the record before us contains no itemized statement. Accordingly, the

face of the record does not show Posey complied with the requirements of section 18.001(c).

Because Posey did not present expert testimony and did not present an affidavit in compliance

with section 18.001, the evidence is factually insufficient to support the award of $8,153 for past

medical expenses. See Dow, 46 S.W.3d at 241–42.

As to future damages for personal injuries, Texas follows the reasonable probability rule.

City of San Antonio v. Vela, 762 S.W.2d 314, 321 (Tex. App.—San Antonio 1988, writ denied).

Pursuant to this rule, Texas courts have consistently held that the award of future expenses rests

with the fact finder. Coring v. Thompson, No. 05-98-00231-CV, 2000 WL 764930, at *3 (Tex.

App.—Dallas June 14, 2000, no pet.) (not designated for publication). The only requirement to

support an award of future medical expenses is that there be evidence in the record of the

reasonable value of past medical treatment and to establish the probable necessity of future medical

treatment. Thate v. Tex. & P. Ry. Co., 595 S.W.2d 591, 601 (Tex. App.—Dallas 1980, writ

dism’d). Because we have concluded Posey failed to establish the reasonable value of past medical

treatment, we likewise conclude the evidence is factually insufficient to support the award of

$2,500 for future medical expenses. Id.

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 We sustain Cate’s third issue. The supreme court has instructed that “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.” Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 86 (Tex. 1992).

Thus, we will reverse and remand for a new trial on the issue of past and future medical expenses.

C. Past and Future Physical Impairment, Past Mental Anguish and Future
Pain and Suffering Damages – Cate’s Fourth through Sixth Issues

The process of awarding damages for amorphous, discretionary injuries such as pain and

suffering, physical impairment, and mental anguish is inherently difficult because the alleged

injury is a subjective, unliquidated, nonpecuniary loss. Ten Hagen Excavating, Inc. v. Castro-

Lopez, 503 S.W.3d 463, 486 (Tex. App.—Dallas 2016, pet. denied). The presence or absence of

pain, either physical or mental, is an inherently subjective question because the process is not

readily susceptible to objective analysis. Dawson, 107 S.W.3d at 751. Accordingly, the trier of

fact is given discretion when determining such damages. Sw. Tex. Coors, Inc. v. Morales, 948

S.W.2d 948, 951–52 (Tex. App.—San Antonio 1997, no writ).

An award for mental anguish damages must be supported either by direct evidence of the

nature, duration, and severity of the plaintiff’s mental anguish, thereby establishing a substantial

interruption in the plaintiff’s daily routine, or by circumstantial evidence of a high degree of mental

pain and distress that is greater than mere worry, anxiety, vexation, embarrassment, or anger.

Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995). Here, Posey testified about the pain

she has suffered since the accident. She has pain in her back and neck that radiates to her arms,

fingers, hips and legs. She discussed how the pain limits her activities. She further indicated that

the pain and limitations have caused her to experience depression. Based on Posey’s undisputed

testimony, we hold that the evidence is legally sufficient to support the trial court’s award of some

monetary damages for mental anguish. See Cotton Patch Café v. McCarty, No. 02-05-00082-CV,
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2006 WL 563307, at *5 (Tex. App.—Fort Worth Mar. 9, 2006, no pet.) (mem. op.); Fiske v. Fiske,

No. 01-03-00048-CV, 2004 WL 1847368, at *3 (Tex. App.—Houston [1st Dist.] Aug. 19, 2004,

no pet.) (mem. op.) (evidence of depression has been found to be legally and factually sufficient

evidence of mental anguish damages because it constitutes more than mere worry, anxiety,

vexation, embarrassment or anger); Gerland’s Food Fair, Inc. v. Hare, 611 S.W.2d 113, 120 (Tex.

App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.) (evidence of depression supports a conclusion

the plaintiff suffered mental anguish and mental anguish can be implied from injuries accompanied

by physical pain).

As to pain and suffering, Posey testified that she suffers headaches, as well as back and

neck pain that radiates to her arms, fingers, legs and hips as a result of the accident. Based on

Posey’s undisputed testimony, we hold that the evidence is legally sufficient to support the trial

court’s award of some monetary damages for future pain and suffering. Cotton Patch, 2006 WL

563307, at *4.

As noted, the process of awarding damages for pain and suffering is inherently difficult

because the alleged injury is a subjective, unliquidated, nonpecuniary loss. Id. The amounts

awarded for such damages are necessarily speculative, and each case must be judged on its own

facts. Id.

Even though each case must be judged on its own unique facts, it is proper to consider

other approved awards in similar cases to determine if awards for pain and suffering and mental

anguish are excessive. HCRA of Tex., Inc. v. Johnston, 178 S.W.3d 861, 872 (Tex. App.—Fort

Worth 2005, no pet.). In Smith, the court of appeals concluded an award of $18,500 for past pain

and suffering and mental anguish was not excessive to compensate a passenger who experienced

pain in her neck and back following an automobile accident. Smith v. Carter, No. 12-11-00639-

CV, 2012 WL 3252499, at *5 (Tex. App.—Corpus Christi Aug. 9, 2012, pet. denied) (mem. op.).

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In Figueroa, the court of appeals determined that an award of $10,000 for past and future pain and

suffering was not excessive to compensate a driver who sustained neck, back and teeth injuries in

an automobile accident that gave rise to his personal injury action. Figueroa v. Davis, 318 S.W.3d

53, 64 (Tex. App.—Houston [1st Dist.] 2010, no pet.). In Dawson, the court of appeals concluded

an award of $25,000 in future pain and suffering was not excessive to compensate a motorist in a

rear-end car accident who suffered pain in her back and neck as a result of the accident. Dawson,

107 S.W.3d at 752. We conclude the awards of $5,000 for past mental anguish and $5,000 for

future pain and suffering are not excessive on this record. Accordingly, we overrule Cate’s fifth

and sixth issues.

In order to recover for physical impairment, the plaintiff must show that the effect of the

physical impairment is substantial and extends beyond any pain, suffering, mental anguish, lost

wages, or earning capacity. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 772 (Tex.

2003). Damages for physical impairment are meant to compensate a plaintiff for an impairment

of the capacity to enjoy life. Day v. Domin, No. 05-14-00467-CV, 2015 WL 1743153, at *2 (Tex.

App.—Dallas Apr. 16, 2015, no pet.) (mem. op.). Posey testified that she sustained neck and back

injuries as a result of the automobile accident in which her vehicle was rear-ended while she was

at a complete stop. She is the caregiver for her 88-year-old mother and, because of the pain, some

days she is restricted on what chores she is able to do and she is limited in her activity. She also

testified she sometimes has to get others to help her because of the pain and limitations. Based on

Posey’s undisputed testimony, we hold that the evidence is legally sufficient to support the trial

court’s award of some monetary damages for past and future physical impairment.

Awards in similar cases can be relevant in analyzing whether an award of damages is

excessive. Critical Path Res., Inc. v. Cuevas, No. 14-16-00036-CV, 2018 WL 1532343, at *28

(Tex. App.—Houston [14th Dist.] Mar. 29, 2018), supplemented, No. 14-16-00036-CV, 2018 WL

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2106599 (Tex. App.—Houston [14th Dist.] May 8, 2018, no pet.). An award of $50,000 for future

physical impairment was legally and factually sufficient for injuries sustained as a result of a rear-

end collision in Roberts v. Tatum, 575 S.W.2d 138, 143–44 (Tex. App.—Corpus Christi 1978, writ

ref’d n.r.e.). An award of $43,000 for past physical impairment was held not excessive to

compensate a driver for injuries arising out of an intersection collision in Terry v. Garcia, 800

S.W.2d 854, 859 (Tex. App.—San Antonio 1990, writ denied). An award of $30,000 in damages

for future physical impairment in an automobile collision case was found not to be excessive in

Allen v. Whisenhunt, 603 S.W.2d 242, 244–45 (Tex. App.—Houston [14th Dist.] 1980, writ

dism’d).3

In light of the evidence and decisions in other cases involving like injuries, we conclude

the awards of $10,000 for past physical impairment and $10,000 for future physical impairment

are not excessive. Accordingly, we overrule Cate’s fourth issue.

CONCLUSION

We reverse the trial court’s judgment as to past and future medical expenses and remand

the issues of past and future medical expenses to the trial court for a new trial. We otherwise

affirm the trial court’s judgment.

/David J. Schenck/
DAVID J. SCHENCK
JUSTICE

171216F.P05

3
See also, Roberts v. Tatum, 575 S.W.2d 138, 1443–44 (Tex. App.—Corpus Christi 1978, writ ref’d n.r.e.) (an award of $25,000 for
past physical impairment in a rear-end collision case was not excessive); Plainview Motels, Inc. v. Reynolds. 127 S.W.3d 21, 39 (Tex. App.—Tyler
2003, pet. denied) (an award of $25,000 for future impairment where the plaintiff suffered a back injury after a stack of mirrors fell on him was
upheld).

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 Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

AMBER M. CATE, Appellant On Appeal from the 298th Judicial District
Court, Dallas County, Texas
No. 05-17-01216-CV V. Trial Court Cause No. DC-16-10278-M.
Opinion delivered by Justice Schenck.
CAROLYN S. POSEY, Appellee Justices Lang and Fillmore participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED in part and REVERSED in part. We REVERSE that portion of the trial court’s
judgment awarding appellee past and future medical expenses. In all other respects, the trial
court’s judgment is AFFIRMED. We REMAND this cause to the trial court for further
proceedings as to past and future medical expenses.

It is ORDERED that each party bear its own costs of this appeal.

Judgment entered this 4th day of December, 2018.

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