Affirmed in Part, Remittitur Suggested in Part, and Memorandum Opinion
filed November 23, 2021.
In The
Fourteenth Court of Appeals
NO. 14-18-00800-CV
ANA LISA MINES, PERSONAL REPRESENTATIVE OF THE ESTATE
OF JORGE LUIS MINES, AND OLD AMERICAN MUTUAL FIRE
INSURANCE COMPANY, Appellants
V.
KENON D. MURPHY, Appellee
On Appeal from the 152nd District Court
Harris County, Texas
Trial Court Cause No. 2013-66594
MEMORANDUM OPINION
Appellants Ana Lisa Mines, Personal Representative of the Estate of Jorge
Luis Mines, and Old American County Mutual Fire Insurance Company appeal the
jury verdicts in favor of appellee Kenon D. Murphy. In eight issues appellants
assert that this court should reverse the trial court’s judgment. We affirm in part
and suggest remittitur in part.
I. BACKGROUND
Appellee Kenon D. Murphy was injured in a motor vehicle collision when
his tractor-trailer was struck head-on by a vehicle driven by Jorge Luis Mines.
Jorge died from his injuries. Appellee sued appellant “Ana Lisa Mines, personal
representative of the estate of Jorge Luis Mines” asserting claims of negligence,
negligence per se, and gross negligence for the injuries he received from the
collision.
After filing suit, appellee’s trial counsel sent a demand letter to appellants’
trial counsel detailing the injuries suffered by appellee in the collision and
demanding that appellant Old American tender the insurance policy limits to settle
appellee’s claims. The parties disagree about what happened next. Old American
contended that it accepted the offer of settlement. Appellee contended that Old
American sent a counteroffer instead of an acceptance and failed to accept the offer
by not “tendering” the amount demanded in the offer by the deadline.
Old American filed a motion for enforcement of the settlement agreement
and a motion for summary judgment on its claims for breach of the settlement
agreement; both were denied by the trial court. Old American and appellee tried to
a jury the issue of whether the parties entered into a settlement agreement. The
jury returned a verdict in favor of appellee, finding that no settlement agreement
was entered into between the parties. Because the jury found that there was no
settlement agreement, the trial court conducted a second jury trial on liability and
damages for appellee’s personal injury claims. The second jury returned a verdict
in favor of appellee. This appeal followed.
2
II. ENFORCEMENT AND SUMMARY JUDGMENT MOTIONS
In appellants’ first issue, they argue that the trial court “erred by failing to
acknowledge and enforce a valid settlement agreement . . . and by proceeding to
jury trials in this case.” The general rule is that a denial of a summary judgment
cannot be reviewed on appeal. United Parcel Serv. v. Tasdemiroglu, 25 S.W.3d
914, 916 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). Where a motion
for summary judgment is denied and the case is tried on the merits, the order
denying the summary judgment cannot be reviewed on appeal. Id. (citing
Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex. 1996)). The party’s
remedy is to assign error to the trial court’s judgment ultimately rendered
following trial on the merits. Id.
In the first issue, appellants are appealing the denial of their motions for
summary judgment and motion for enforcement.1 The appropriate remedy is to
assign error to the trial court’s judgment following the trial on the merits. See id.
We overrule appellants’ first issue.
III. JURY CHARGE
In appellants’ second issue, they argue that the trial court erred by
submitting the definition of the word “tender” as proposed by appellee because “it
1
In the first issue appellants do not explicitly state they are appealing the denial of the
summary judgment and enforcement motions. However, appellants frame the issue as one of the
trial court committing error because it allowed the case to proceed to a jury trial. Appellants cite
only to the clerk’s record, including the summary judgment and enforcement motions as well as
the notice of rule 11 agreement. There are no citations to the evidence admitted at trial or any
trial testimony. Appellants complain in issue one that “the Trial Court submitted the issue to a
jury . . . [and] committed reversible error” and “[b]ecause of the settlement, neither of the trials
that took place was necessary.” Appellants did not make a motion for directed verdict at any
time during the first trial or object to the submission of the case to the jury. In their third issue,
appellants contend that “there was legally insufficient evidence to support the jury’s verdict on
Question 1 (settlement) . . . or the jury’s verdict was against the great weight and preponderance
of the evidence.”
3
was defective and misleading when applied to the . . . demand letter.” Appellants
argue that the “definition was not in conformity with the evidence introduced
during trial and was thus calculated to result in the rendition of an improper jury
verdict.” Appellee contends that the definition was substantially correct and that
appellants waived any error by failing to object.
A. General Legal Principles
“A request by either party for any questions, definitions, or instructions shall
be made separate and apart from such party’s objections to the court’s charge.”
Tex. R. Civ. P. 273. “A party objecting to a charge must point out distinctly the
objectionable matter and the grounds for the objection. Any complaint as to a . . .
definition . . . is waived unless specifically included in the objections.” Tex. R.
Civ. P. 274. “The rule creates a two-pronged test: objections to the charge must
specify the error and the legal bases of the objection.” Meyers v. 8007 Burnet
Holdings, LLC, 600 S.W.3d 412, 422 (Tex. App.—El Paso 2020, pet. denied).
“Preservation of error generally depends on ‘whether the party made the trial court
aware of the complaint, timely and plainly, and obtained a ruling.’” Ford Motor
Co. v. Ledesma, 242 S.W.3d 32, 43 (Tex. 2007) (quoting State Dep’t of Highways
& Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992)).
B. Background
During the jury charge conference, the trial court presented the parties with
its proposed charge. Old American objected to the charge and offered a written
instruction for the definition of “tender” to the trial court.2 Appellee also objected
2
The trial court also refused two more instructions proffered by Old American for
inclusion in the jury charge. Appellants argue that it was error for the trial court to refuse to
include these instructions but do not argue how the failure to include these instructions was an
abuse of discretion or provide any citation to authority. Appellants further fail to argue or
demonstrate how the exclusion of these instructions probably caused the rendition of an
4
and offered a written instruction for the definition of “tender.” The trial court
refused to include either appellee’s or Old American’s proposed definitions of
“tender” and concluded the jury charge conference. The next morning prior to
reading the charge to the jury, the trial court decided that it would include
appellee’s definition of “tender” in the charge after reviewing the cases submitted
by the parties.3 Appellants’ counsel requested additional time to discuss the trial
court’s decision, but the trial court told him it was unnecessary. There were no
further objections or discussion about the jury charge. The trial court then read the
charge to the jury.
C. Analysis
Here, while the trial court was fully aware of appellants’ requested
definition, appellants did not object to the inclusion of the definition provided by
appellee.4 See Tex. R. Civ. P. 273, 274; see also EYM Diner L.P. v. Yousef, 05-19-
00636-CV, 2020 WL 6883171, at *11 (Tex. App.—Dallas Nov. 24, 2020, no pet.
h.) (“But more importantly, the pretrial proposed charges, standing alone, did not
apprise the trial judge of the purported problems with and errors in the court’s
charge that [the appellants] now assert on appeal, nor did they give the trial judge
an opportunity to cure those purported errors.”); Meyers, 600 S.W.3d at 423 (“Had
counsel explained why its suggested charge more closely followed the statute, we
might view the situation differently.”). Old American failed to object to the
inclusion of appellee’s definition of tender and alert the trial court as to why it was
improper judgment or probably prevented the appellant from properly presenting its case to this
court. See Tex. R. App. P. 44.1; Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d
851, 856 (Tex. 2009). Therefore, any argument that the trial court erred in refusing these
instructions has been waived. See Tex. R. App. P. 38.1(h).
3
The cases submitted and briefing, if any, are not part of the record on appeal.
4
Appellant states “[o]ver the objection of Intervenor Old American . . .” but does not
point to where such an objection was made. No such objection appears in the record.
5
erroneous or why its definition was a more accurate statement of the law in this
case. See Meyers, 600 S.W.3d at 423. On appeal appellants argue that the
definition submitted was not an accurate statement of the law because in certain
circumstances “tender” does not mean the actual production of funds and cites to
cases supporting that contention. However, the record does not reflect that such an
argument was made to the trial court so as to allow the trial court to correct any
error in the charge prior to reading the charge to the jury. The proposed definition
provided by appellant did not apprise the trial court of the purported problems with
the charge that appellants now assert on appeal. See Cruz v. Andrews Restoration,
Inc., 364 S.W.3d 817, 829 (Tex. 2012) (“Our procedural rules require the lawyers
to tell the court about such errors before the charge is formally submitted to a
jury.”); Ledesma, 242 S.W.3d at 43–44 (concluding jury charge error preserved
where “[t]he objection, proposed question and instruction, and supporting
authorities provided the trial court with a plain objection identifying the error in the
charge that we recognize today, ‘with sufficient specificity to make the trial court
aware of the complaint.’” (quoting Tex. R. App. P. 33.1(a)(1)(A)); Meyers, 600
S.W.3d at 423 (“But leaving the task of discerning the differences between the two
forms of the questions to the trial court simply asks too much.”). Thus, we agree
with appellee that appellants have not preserved their complaint of jury charge
error with regard to the definition of the term “tender” that was submitted to the
jury.
Appellants argue that the trial court did not allow Old American to voice its
objection and that the prior discussion was not on the record because it occurred
during the informal jury charge conference. While this may be the case, Old
American did not preserve the error that it now asserts on appeal because we
cannot ascertain from the record whether the arguments made on appeal were
6
made to the trial court prior to the charge being read to the jury. See Tex. R. App.
P. 33.1(a)(1)(A); Cruz, 364 S.W.3d at 831 (“Protech can complain on appeal only
if it made the trial court aware, timely and plainly, of the purported problem and
obtained a ruling.”). The rules require that prior to presenting an error to the
appellate court, the party must first give the trial court the opportunity to hear the
argument and correct the alleged error. See Cruz, 364 S.W.3d at 831.
We overrule appellants’ second issue.
IV. LEGAL AND FACTUAL SUFFICIENCY IN THE FIRST TRIAL
In appellants’ third issue, appellants argue that the evidence is “legally
insufficient to support the jury’s verdict” on the settlement agreement in the first
trial, or “the jury’s verdict was against the great weight and preponderance of the
evidence.”
A. General Legal Principles
When reviewing the legal sufficiency of the evidence, we consider the
evidence in the light most favorable to the challenged finding and indulge every
reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d
802, 823 (Tex. 2005). We must credit favorable evidence if a reasonable factfinder
could and disregard contrary evidence unless a reasonable factfinder could
not. See id. at 827. We must determine whether the evidence at trial would enable
reasonable and fair-minded people to find the facts at issue. See id. The factfinder
is the only judge of witness credibility and the weight to give to testimony.
See id. at 819.
A party attacking legal sufficiency relative to an adverse finding on which it
had the burden of proof must demonstrate that the evidence conclusively
establishes all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46
7
S.W.3d 237, 241 (Tex. 2001) (per curiam). We review the entire record to
determine if the contrary proposition is established as a matter of law only if there
is no evidence to support the judgment. See id. Anything more than a scintilla of
evidence is legally sufficient to support the judgment. See Wilson, 168 S.W.3d at
822. The final test for legal sufficiency is whether the evidence would enable
reasonable and fair-minded people to reach the verdict under review. Id. at 827.
The factfinder is the sole judge of witness credibility and the weight to give
witnesses’ testimony. Id. at 819.
“Our review is restricted to the jury charge as submitted when there was no
objection to the instruction.” Seger v. Yorkshire Ins. Co., Ltd., 503 S.W.3d 388,
407 (Tex. 2016). “Even if another legal theory was argued to the jury and
explained by the lawyers in argument, we are bound by the instructions given to
the jury and presume that the jury followed those instruction.” Id. (citing
Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 861–62 (Tex.
2009)).
When reviewing a challenge to the factual sufficiency of the evidence, we
examine the entire record, considering both the evidence in favor of, and contrary
to, the challenged finding. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07
(Tex. 1998). When a party attacks the factual sufficiency of an adverse finding on
which it bore the burden of proof, it must establish that the finding is against the
great weight of the preponderance of the evidence. Schear Hampton Drywall, LLC
v. Founders Commercial, Ltd., 586 S.W.3d 80 (Tex. App.—Houston [14th Dist.]
2019, no pet.) (citing Dow Chem. Co., 46 S.W.3d at 242). The trier of fact stands
as the sole judge of the credibility of the witnesses and the weight to be given to
their testimony. GTE Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599, 615–16
(Tex. App.—Houston [14th Dist.] 2001, pet. denied). We may not substitute our
8
own judgment for that of the trier of fact, even if we would reach a different
answer on the evidence. Mar. Overseas Corp., 971 S.W.2d at 407. It takes far less
evidence to affirm a judgment than to reverse a judgment. Pascouet, 61 S.W.3d at
616.
To have an enforceable agreement under Texas Rule of Civil Procedure 11,
the agreement must be in “writing, signed and filed with the papers as part of the
record, or unless it be made in open court and entered of record.” Tex. R. Civ. P.
11. To satisfy Rule 11, there must be a written memorandum which is complete
within itself in every material detail, and which contains all the essential elements
of the agreement, so that the contract can be ascertained from the writings without
resorting to oral testimony. Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex.
1995). The writing need not be in only one document. Id.
The following elements are required for the formation of a binding contract:
(1) an offer, (2) acceptance in strict compliance with the terms of the offer, (3) a
meeting of the minds, (4) each party’s consent to the terms, and (5) execution and
delivery of the contract with the intent that it be mutual and binding. Wal-Mart
Stores, Inc. v. Lopez, 93 S.W.3d 548, 555–56 (Tex. App.—Houston [14th Dist.]
2002, no pet.). For an agreement to be enforceable, there must be a meeting of the
minds with respect to its subject matter and essential terms. Id. at 556. The
determination of a meeting of the minds, and thus offer and acceptance, is based on
the objective standard of what the parties said and did—and not on their subjective
state of mind. Id. In determining mutual assent, the court considers the
communications between the parties and the acts and circumstances surrounding
those communications. Id.
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B. Background
The first trial between the parties was to determine whether the parties had
entered into a Rule 11 settlement agreement. Appellee’s attorney sent a settlement
demand letter to appellants. The offer of settlement made by appellee’s attorney
stated in pertinent part:
We hereby demand upon you for tender of the full amount of the
available policy limits before the expiration of fourteen (14) days
from your receipt of this demand. In exchange, we propose to fully
release your insured for all claims and liens. . . . In the event this
demand is not met by the expiration date, this offer of settlement is
automatically revoked.
Eleven days later, appellant’s insurer responded by letter to appellee and
stated:
This letter will serve as our reconfirmation of the company’s
agreement to tender the applicable per person Bodily Injury policy
limits in the amount of $30,000.00 in full and final resolution of any
and all claims which your client may now or in the future possess as a
result of this motor vehicle accident. If you will recall, this offer had
been previously extended on September 11, 2013.
Enclosed please find a release. In addition, . . . the company is
required to secure a W-9 form with your tax identification number. . .
Upon receipt of the above, we will process the settlement draft.
The meaning of the word “tender” was a contested issue in the first trial. It was
undisputed that appellants did not send any money to appellee or relinquish
possession of any funds under circumstances that would allow appellee to acquire
possession without special effort.
In the jury charge, the jury was asked: “Do you find that [appellee’s] letter
. . . and [appellants’] letter . . . constituted an agreement whereby [appellee] would
fully and finally settle his claims . . . in exchange for [appellants’] tender of
$30,000.00 before December 26, 2013?” The jury charge instructed that “tender”
10
meant “an unconditional offer to pay. A valid and legal tender consists of the
actual production of the funds and the tenderer must relinquish possession of the
funds under such circumstances as to enable the person to whom it is tendered,
without special effort on his part[,] to acquire possession.”
C. Analysis
Although appellants argued that “tender” did not mean actual production of
the funds, because the jury was instructed that “tender meant actual production” or
relinquishment of the funds, we cannot consider appellants’ legal theories when
reviewing the legal sufficiency of the evidence of the jury’s findings. See Seger,
503 S.W.3d at 407. Thus, because it was undisputed that appellants did not tender5
the amount as demanded in the settlement offer, appellants cannot demonstrate that
the evidence conclusively establishes all vital facts in support of the issue. See
Dow Chem. Co., 46 S.W.3d at 241.
After considering and weighing all the evidence in the first trial, we
conclude that the jury’s finding that there was no settlement agreement entered into
between the parties is not against the great weight of the preponderance of the
evidence. See Schear Hampton Drywall, LLC, 586, S.W.3d at 242. Because of the
way the jury was instructed on the definition of tender and because there was no
evidence that appellants’ “tendered” the amount demanded, the evidence was
factually sufficient to support the jury’s verdict.
We overrule appellants’ third issue.
5
As that term was defined in the jury charge. Because we concluded that appellants
failed to preserve their argument with regard to jury charge error, we do not analyze or comment
as to whether the charge given was proper.
11
V. EXPERT WITNESS TESTIMONY
In appellants’ sixth issue they contend that the trial court erred by allowing
appellee’s expert witness to testify about certain topics. First appellants argue that
the trial court erred because it allowed the chiropractor to testify regarding
appellee’s post traumatic stress disorder because he was not designated or qualified
to testify about this issue. Appellants also contend that appellee failed to establish
the proper foundation for such testimony. Second, appellants argue that the trial
court allowed the chiropractor to testify about bio-mechanical engineering and
causation issues without being properly qualified or designated. Third, appellants
contend that the trial court erred in allowing the chiropractor to testify about
appellee’s future medical expenses because he was not properly qualified or
designated.
A. General Legal Principles
“Failure to designate a testifying expert and an expert’s alleged lack of
qualifications are defects of form on which an appellant must object and obtain a
ruling to preserve error.” Expro Americas, LLC v. Sanguine Gas Expl., LLC, 351
S.W.3d 915, 919–20 (Tex. App.—Houston [14th Dist.] 2011, pet. denied); see also
Duncan-Hubert v. Mitchell, 310 S.W.3d 92, 102 (Tex. App.—Dallas 2010, pet.
denied). If there is no ruling on such objections by the trial court, then the
objections are waived. Expro Americas, LLC, 351 S.W.3d at 920.
We review a trial court’s admission of expert witness testimony for an abuse
of discretion. See Gunn v. McCoy, 554 S.W.3d 645, 666 (Tex. 2018); Sw. Energy
Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 716 (Tex. 2016). To reverse a trial
court’s judgment based on the admission of evidence, we must find that the trial
court committed error and that the error was harmful. See Gunn, 554 S.W.3d at
666 (citing Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989)
12
(“To obtain reversal of a judgment based upon error of the trial court in admission
or exclusion of evidence, the following must be shown: (1) that the trial court did
in fact commit error; and (2) that the error was reasonably calculated to cause and
probably did cause rendition of an improper judgment.”)). “Typically, a successful
challenge to a trial court’s evidentiary rulings requires the complaining party to
demonstrate that the judgment turns on the particular evidence excluded or
admitted.” Discovery Op., Inc. v. BP Am. Prod. Co., 311 S.W.3d 140, 169 (Tex.
App.—Eastland 2010, pet. denied).
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if the
expert’s scientific, technical, or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in issue.” Tex. R. Evid. 702.
“Admissibility of an expert’s opinion hinges on whether the expert has special
knowledge concerning the matter on which his opinion is sought that will assist the
trier of fact.” Moreno v. Ingram, 454 S.W.3d 186, 193 (Tex. App.—Dallas 2014,
no pet.).
B. Background
In the second trial, appellee called a chiropractor to testify about appellee’s
injuries. The chiropractor testified that he has been a licensed chiropractor for
approximately sixteen years, that he had learned to treat people involved in
“traumatic accidents,” including any type of musculoskeletal injury, brain-
traumatic injuries particularly in the context of car accidents, and work injuries.
The chiropractor testified that he could diagnose and treat musculoskeletal injuries
and manipulate the spine to help a patient with those injuries. He is further
qualified as a state certified “Designated Doctor” and “Impairment Evaluation
Physician” meaning that he is designated within the Texas workers compensation
13
system to help determine “the status and evaluation” for injured workers eligible
for workers compensation. The chiropractor took a separate class and examination
to qualify as a Designated Doctor and Impairment Evaluation Physician. As a
Designated Doctor and Impairment Evaluation Physician the chiropractor
examines injured employees to determine questions from their treating physicians
regarding the extent of their disability or impairment. The chiropractor performed
an “Impairment Rating Evaluation” on appellee in 2015 and prepared a report of
his findings from this evaluation. The report was admitted into evidence without
objection.
The chiropractor testified that in preparing his evaluation he reviewed
appellee’s medical records from diagnostic testing performed by other doctors.
The chiropractor testified that based on his review of appellee’s medical records he
believed that appellee suffered injuries to his spine and ribs, as well as trauma to
his brain as a result of the collision. He testified that appellee’s MRI showed that
appellee had a “bulge” and “protrusion” in two different places in his neck and that
these injuries were the result of the collision because such injuries are typically
associated with whiplash experienced in a collision and because appellee did not
have any prior medical history of neck injury. The chiropractor testified that
appellee had received cortical steroids injected into his neck to reduce the pain
appellee was experiencing from the neck injury. When examined by the
chiropractor, appellee indicated that the injections helped to relieve some of the
pain he was experiencing.
The chiropractor testified that in addition to his work as an Impairment
Evaluation Doctor he also has a clinical practice where he treats patients who are
injured. He testified that if he was appellee’s treating doctor, assuming appellee
was in the same condition at trial as he was on the day of the chiropractor’s
14
examination, that appellee would need “cervical injections and additional physical
therapy to go along with those injections.”6 The chiropractor testified that typical
treatment for appellee’s injuries require multiple injections over a long period of
time.
The chiropractor then testified that pain management is something that is
done in his office and that he is familiar with the costs associated therewith
because he reviews the charges made by his office and what is paid. When asked
about the costs associated with injections and physical therapy, appellants
objected. The trial court sustained appellants’ objection with regard to his
testimony about the costs of injections but overruled appellants’ objection with
regard to the costs of physical therapy. The chiropractor testified that appellee
would need between four and ten visits and the average cost would be between
$250-$300 per visit. He testified that appellee would need “[a]t least six to ten
sessions of therapy” based off the injection and more if he experiences a “flare up
of his cervical injury.”
C. Analysis
Appellants first argue that the trial court abused its discretion in admitting
the expert witness testimony because appellee’s expert was never designated.
Appellants refer to an objection filed in the trial court to appellee’s alleged failure
to designate experts, but there is no indication that this objection was ever ruled on
by the trial court. As a result, appellants have failed to preserve this issue for
review. See Expro Americas, LLC, 351 S.W.3d at 919–20; Duncan-Hubert, 310
S.W.3d at 102.
6
Appellants objected to these questions but did not object to a lack of qualification.
Instead, appellants objected to a lack of foundation, which was overruled by the trial court.
15
Appellants next argue that the chiropractor was never qualified to testify
about post-traumatic stress disorder or “biomechanical engineering and causation”
issues. Assuming appellants have preserved such arguments,7 appellants have not
identified or argued how this testimony probably caused the rendition of an
improper judgment. See Tex. R. App. P. 44.1(a)(1); Nissan Motor Co. Ltd. v.
Armstrong, 145 S.W.3d 131, 144 (Tex. 2004) (“Having found the trial court erred
in admitting [the evidence] . . . we must consider whether these errors require
reversal. Erroneous admission of evidence requires reversal only if the error
probably (though not necessarily) resulted in an improper judgment.”); see also
State v. Central Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009). Due
to lack of any such argument or demonstration of harm, appellants have waived
this issue on appeal.
Even assuming that the chiropractor’s testimony about appellee’s post-
traumatic stress disorder was erroneous, appellee testified at length about his post-
traumatic stress disorder, detailing how the collision had affected his life daily,
how he suffered from reoccurring visions of headlights coming at him and was
unable to drive, and how he suffered from depression, attempted suicide, and was
admitted into psychiatric care because of the aftereffects of the collision.
Additionally, the chiropractor’s evaluation admitted into evidence without
7
Appellants cite to two places in the record where the chiropractor testified regarding
appellee’s post-traumatic stress disorder. The first is during direct examination to which
appellants did not object. The second is during cross-examination and elicited by appellants.
Appellants also cite to their objections to the expert witness filed in the trial court but have failed
to show where this objection was submitted to the trial court or heard by the trial court. It is also
not apparent from the record that appellants obtained a “running objection” to the chiropractor’s
testimony about appellee’s post-traumatic stress disorder. Appellants cite to only one place in
the record where the chiropractor testified regarding “biomechanical engineering and causation”
issues––during cross-examination. Such testimony was elicited by appellants. Appellants have
not otherwise identified what other testimony on this issue was offered, over objection, and
harmful.
16
objection indicated that appellee had seen a doctor for psychiatric consultation and
the doctor had classified appellee as experiencing “extreme impairment . . .
because his impairment levels preclude useful functioning with regard to activities
of daily living, social functioning, concentration and adaptation.” Because other
evidence was introduced regarding appellee’s post-traumatic stress disorder,
appellants have failed to show that the judgment turns on the chiropractor’s
testimony on this topic. See Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 617
(Tex. 2000) (“This court ordinarily will not reverse a judgment for erroneous
rulings on admissibility of evidence when the evidence in question is cumulative
and not controlling on a material issue dispositive to the case.”); Discovery Op.,
Inc., 311 S.W.3d at 169.
Regarding the chiropractor’s testimony about future medical expenses,
appellants contend that the chiropractor was not qualified to testify about such
expenses. The chiropractor testified that he treats and diagnoses patients with
injuries, pain management, and relief and is familiar with the costs associated
therewith. Within his office there is a doctor that is a “Pain Management
Specialist,” and the chiropractor is familiar with the procedures performed by the
Pain Management Specialist and the costs associated therewith. The chiropractor
testified that based upon a reasonable medical probability that appellee’s physical
injuries would require continued treatment in the future to address numbness,
tingling and pain, and that there is a probability that surgery may be needed. Based
on this record, we cannot conclude that the trial court abused its discretion in
determining the that the chiropractor was qualified to opine on the medical cost or
need of physical therapy. See Hernandez v. Moss, 538 S.W.3d 160, 170–71 (Tex.
App.—El Paso 2017, no pet.) (admission of chiropractor’s testimony about future
medical expenses was not an abuse of discretion where chiropractor testified as to
17
training and experience and based conclusions on “reasonable medical
probability”); Hayhoe v. Henegar, 172 S.W.3d 642, 644–45 (Tex. App.—Eastland
2005, no pet.).
We overrule appellants’ sixth issue.
VI. LEGAL AND FACTUAL SUFFICIENCY IN THE SECOND TRIAL
In issue four, appellants argue that the evidence is legally and factually
insufficient to support the jury’s verdict on appellee’s past lost wage earning
capacity. Appellants contend that appellee failed to submit evidence in compliance
with section 18.091 of the Texas Civil Practice and Remedies Code. In issue five,
appellants argue that the evidence is legally and factually insufficient to support
the jury’s verdict on appellee’s future medical expenses. Appellants contend that
no evidence was offered as to future medical expenses. Appellants contend that to
the extent that a chiropractor testified regarding future medical expenses, the
chiropractor was neither qualified nor properly designated as an expert witness.
A. General Legal Principles
When reviewing the legal sufficiency of the evidence, we consider the
evidence in the light most favorable to the challenged finding and indulge every
reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d
802, 823 (Tex. 2005). We must credit favorable evidence if a reasonable factfinder
could and disregard contrary evidence unless a reasonable factfinder could not.
See id. at 827. We must determine whether the evidence at trial would enable
reasonable and fair-minded people to find the facts at issue. See id. The factfinder
is the only judge of witness credibility and the weight to give to testimony.
See id. at 819.
18
In a factual sufficiency review, we will set aside the verdict and remand for a
new trial if we conclude that the verdict is so against the great weight and
preponderance of the evidence as to be manifestly unjust. Golden Eagle Archery,
Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003) (citing In re King’s Estate, 244
S.W.2d 660, 661 (Tex. 1951)). We will weigh the evidence supporting the verdict
along with evidence contrary to the verdict. See id. at 761–62. However, the fact-
finder remains the sole judge of the credibility of witnesses and the weight to be
given their testimony. Id. at 761. We must defer to the fact-finder's determinations
so long as those determinations are reasonable. See Sw. Bell Tel. Co. v. Garza, 164
S.W.3d 607, 625 (Tex. 2004). We may not merely substitute our judgment for that
of the fact-finder. Golden Eagle Archery, 116 S.W.3d at 761.
B. Future Medical Expenses
To recover future medical expenses, a plaintiff must provide evidence
showing a reasonable probability that the medical expenses will be incurred in the
future and the probable cost of such expenses. Gunn, 554 S.W.3d at 112. While
expert testimony is preferred, no precise evidence is required to support an award
for future medical costs. Id. It is within the jury’s discretion to determine the
amount to award in future medical expenses. Id. This standard is not so vague that
a reviewing court will uphold a jury award when there is no evidence to support
the award. Id. “[T]he only requirement to support a verdict on this issue 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.” Blankenship
v. Mirick, 984 S.W.2d 771, 778 (Tex. App.—Waco 1999, pet. denied).
“Determination of the expense of future treatment is a matter for the jury to
determine in the exercise of their sound discretion under proper instructions from
the court.” Id.
19
Appellee testified that he still sees three doctors; one is a treating doctor, one
is a psychologist, and one is a neurologist. Appellee testified that he is still being
treated for nerve damage to try to help get his strength back, headaches under
control, and pain level down. Currently he is on medication, but sometimes
receives massages to relieve symptoms. Appellee attested that he feels pain every
day. Appellee did not submit documentation of medical expenses or testify about
the costs incurred for his doctor visits, medication, or other medical needs.
Appellee did not testify about how often he experiences “flare ups.” The
chiropractor testified that appellee would need between four and ten visits for
physical therapy and the average cost would be between $250–$300 per visit. He
testified that appellee would need “[a]t least six to ten sessions of therapy,” and
more if he experiences a “flare up of his cervical injury.” The jury awarded
appellee $10,000 in future medical expenses.
Reviewing the evidence in the light most favorable to the challenged finding
and indulging every reasonable inference to support it, appellee submitted legally
sufficient evidence to show that with a “reasonable medical probability” appellee
could expect future medical care. Appellants argue that we may not consider the
chiropractor’s testimony. However, we have already decided that issue against
appellants above. Thus, the evidence is legally sufficient to support an award of
future medical expenses.
Reviewing the entire record considering both evidence in favor of and
contrary to the challenged finding, the evidence in this case is factually insufficient
to support the jury’s award of $10,000 in future medical expenses. While there
was evidence of other potential medical expenses that appellee might incur in the
future, there was no evidence introduced regarding their reasonable cost or whether
there was a reasonable probability that type of care would be required in the future.
20
See Rosenboom Mach. & Tool, Inc. v. Machala, 995 S.W.2d 817, 828 (Tex.
App.—Houston [1st Dist.] 1999, pet. denied) (“[T]o sustain an award of future
medical expenses, the plaintiff must present evidence to establish that in all
reasonable probability, future medical care will be required and the reasonable cost
of that care.”). As a result, the evidence is factually insufficient to support the
jury’s award of $10,000 in future medical expenses, but the evidence is factually
and legally sufficient to support an award of $3,000 to appellee in future medical
expenses. See Tex. R. App. P. 46.3; see Larson v. Cactus Util. Co., 730 S.W.2d
640, 641 (Tex. 1987) (“If part of a damage verdict lacks sufficient evidentiary
support, the proper course is to suggest a remittitur of that part of the verdict. The
party prevailing in the trial court should be given the option of accepting the
remittitur or having the case remanded.”); see also Matbon, Inc. v. Gries, 288
S.W.3d 471, 485 (Tex. App.—Eastland 2009, no pet.) (“A court of appeals may
exercise its power to suggest a remittitur when it determines there is insufficient
evidence to support a damage award, but finds that there is sufficient evidence to
support a lesser award.”).
Appellants’ issue five is sustained. Concluding the evidence is sufficient to
support an award of $3,000 in future medical care expenses, we suggest a
remittitur of $7,000 of the future medical care expenses, modifying the award of
damages in the judgment from $512,859.00 to $505,859.00. Tex. R. App. P. 46.3.
If appellee Kenon D. Murphy timely files the remittitur with the clerk of this court
within twenty days from the date of this opinion, we shall render an amended
judgment modifying the trial court’s judgment to reflect an award of $505,859.00
in damages and affirming the trial court’s judgment as so modified. Tex. R. App.
P. 43.2(b), 46.3. If the suggested remittitur is not filed, the case will be remanded
to the trial court for further proceedings limited to redetermination of future
21
medical care expenses of Kenon D. Murphy. See Larson, 730 S.W.2d at 641
(prevailing party has option to accept remittitur or have case remanded).
C. Past Lost Wage Earning Capacity
“Lost earning capacity is an assessment of what the plaintiff’s capacity to
earn a livelihood actually was and the extent to which that capacity was impaired
by the injury.” Big Bird Tree Servs. v. Gallegos, 365 S.W.3d 173, 178 (Tex.
App.—Dallas 2012, pet. denied). “Loss of past earning capacity is a plaintiff’s
diminished ability to work during the period between the injury and the date of
trial.” Hospadales v. McCoy, 513 S.W.3d 724, 742 (Tex. App.—Houston [1st
Dist.] 2017, no pet.). Proof of lost earning capacity is always uncertain and left
largely to the jury’s discretion. Id. A plaintiff must submit evidence sufficient to
permit a jury to reasonably measure earning capacity in monetary terms to support
an award of lost earning capacity. Id. In determining lost earning capacity, non-
exclusive factors may be considered including evidence of past earnings, the
plaintiff’s stamina, efficiency, ability to work with pain, and the plaintiff’s work-
life expectancy. Id.
At trial, appellee’s wife testified that before the collision, appellee brought
home approximately $1,000 per week for “about a week or two” before the
collision. She testified that his weekly pay was his “take home” pay because he
was still in training. Prior to that, appellee brought home about $600–$800 per
week. Prior to his job at the time of the collision, appellee had worked for another
trucking company. Appellee’s wife testified that appellee made approximately
$1,200–$1,800 per week depending on the distance driven. In another trucking
position appellee was paid between $1,000–$2,000 per week, again depending on
the distance driven. Appellee’s wife testified that before the collision that she and
22
appellee had ambitions of owning their own company with multiple trucks and that
others in her family had run their own trucking businesses.
Appellee testified that he had a class A commercial drivers license, that he
had to take tests to become specially licensed and pass a physical. Appellee also
had to pass a special background check and training to obtain certifications to drive
hazardous materials, as well as training on facility procedures and emergency
procedures. Appellee testified that he loved his job because of the “freedom” it
provided him to move around, be outside, and be his own boss. Appellee wanted
to buy his own truck and start his own trucking business. Appellee testified that in
the weeks prior to the collision his “take-home” pay was approximately $900 per
week and that as his responsibilities increased, so did his pay. The lowest pay he
received in his job prior to the collision was $600 and the most was over $900.
Appellee testified that if he had been able to continue he would have been earning
between $1,000–$1,400 per week and if he had become an owner he could have
made as much as $4,000 per week. Appellee testified that he had not been able to
work for 226 weeks. Appellee testified that at $600 per week, he has lost wages in
the amount of $135,600; at $900 per week, he has lost $203,400.
Appellants cross-examined appellee about appellee’s 2012 tax return. The
tax return showed that appellee was paid approximately $14,000 in 2012 from the
trucking company he was working for at the time of the collision. The tax return
showed that most of that income was reduced by “losses” from appellee’s business,
and as a result, appellee’s adjusted gross income was $3,728. The 2012 tax return
also showed that appellee’s federal income tax liability for that year was $230.
The jury awarded appellee $87,859in loss of earning capacity incurred in the past.
Appellants argue that appellee failed to introduce any evidence in
compliance with 18.091(a) of the Texas Civil Practice & Remedies Code. Section
23
18.091(a) requires that a plaintiff seeking certain damages, such as loss of earning
capacity, provide evidence of the loss “in the form of a net loss after reduction for
income tax payments or unpaid tax liability pursuant to any federal income tax
law.” Tex. Civ. Prac. & Rem. Code § 18.091(a). However, appellants submitted
evidence of appellee’s federal income tax liability for the year of the collision
showing that appellee was only subject to payment of $230 in federal income taxes
that year. Appellee’s evidence of his wages prior to the collision was his “take-
home” pay, both he and his wife testified as to the amount that appellee brought
home from his work as a truck driver. Appellee and his wife also testified to
appellee’s ability to work both before and after the collision.
Given the evidence that was introduced, the jury could have reasonably
presumed that appellee’s tax rate was on the lower side and that appellee’s
evidence reflected his net pay after taxes. See Big Bird Tree Servs., 365 S.W.3d at
179; see also Hospadales, 513 S.W.3d at 742 (“Proof of loss of earning capacity is
always uncertain and is left largely to the discretion of the jury.”). The evidence
presented by appellee was that his lost wage earning capacity was between
$135,00$205,000 while the jury awarded only $87,895. Crediting favorable
evidence if reasonable jurors could, and disregarding contrary evidence unless
reasonable jurors could not, we conclude that the evidence would enable
reasonable and fair-minded people to award $87,895 in past lost earning capacity
damages. See Hospadales, 513 S.W.3d at 744. Furthermore, considering and
weighing all of the evidence, we conclude that the evidence is not so weak to be
clearly wrong and unjust. See id. Thus, the evidence is legally and factually
sufficient to support the jury’s award for appellee’s past lost wage earning
capacity.
We overrule appellants’ fourth issue.
24
VII. CAPACITY
In their seventh and eighth issues, appellants contend that the trial court did
not have jurisdiction over the Estate of Jorge Mines “since there was no probate
action” and Ana Lisa Mines “was never appointed or qualified by any Texas court
to serve as a representative of the Estate of Jorge Mines.” Appellants argue that
because appellee failed to serve the proper party to the lawsuit, filing against and
serving the “personal representative” of the Estate of Jorge Mines, instead of Ana
in her individual capacity, that the judgment rendered by the trial court is void.
Appellee contends that there is no dispute that Ana is the surviving spouse of the
decedent, Ana is an heir at law of the decedent, and that Ana, through her counsel,
appeared in this cause and represented the interest of the decedent.
A. General Legal Principles
In a survival action, the parties seek adjudication of claims against the
decedent for the alleged injuries inflicted by the decedent upon the plaintiff. See
Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 850 (Tex. 2005). “The action
survives against the liable person and the person’s legal representatives.” Tex.
Civ. Prac. & Rem. Code § 71.021(b). “It is well-settled that the estate of a
decedent is not a legal entity and may not sue or be sued as such.” Supak v. Zboril,
56 S.W.3d 785, 792–93 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (citing
Price v. Estate of Anderson, 522 S.W.2d 690, 691 (Tex. 1975)). A suit seeking to
establish liability against a decedent should ordinarily be instituted against the
personal representative or against the heirs or beneficiaries. Price, 522 S.W.2d at
691; Supak, 56 S.W.3d at 793. “When no one has qualified as executor or
administrator of the estate of a deceased spouse, the surviving spouse, whether the
husband or wife, as the surviving partner of the marital partnership has power to
25
sue and be sued for the recovery of community property . . . .” Tex. Prob. Code
§ 160.8
The community property subject to the sole or joint management, control, and
disposition of a spouse during marriage continues to be subject to the liabilities of
that spouse on death. Tex. Estates Code § 101.052(a). Additionally, the interest that
the deceased spouse owned in any other nonexempt community property passes to
the deceased spouse’s heirs or devisees charged with the debts that were enforceable
against the deceased spouse before death. Id. § 101.052(b).
Stated otherwise, community assets of an estate, although they may vest in the
surviving spouse and heirs upon the decedent's death, are held subject to the
payment of community debts and subject to the right of a duly appointed and
qualified personal representative to have possession and control under orders of the
court during administration. In re Estate of Herring, 983 S.W.2d 61, 63 (Tex.
App.—Corpus Christi 1998, no pet.). Moreover, while under the jurisdiction of the
probate court, all community property, including the half-interest of the surviving
spouse, is subject to administration and sale by the probate court as a part of the
estate of the deceased spouse. Id. The authority of the personal representative over
the survivor’s one-half of the community property in the representative’s possession,
however, is limited to what is necessary to satisfy the debts of the deceased spouse
properly payable out of such community assets. Id.
When there is no duly appointed executor, the proper parties are the heirs or
beneficiaries of the estate. In re Estate of Whittington, 409 S.W.3d 666, 671 (Tex.
App.—Eastland 2013, no pet.) (citing Rooke v. Jenson, 838 S.W.2d 229, 230
(Tex.1992)). An heir, who is a person entitled under the statutes of descent and
8
At the time this lawsuit was filed, this provision of the Texas Probate Code was in
effect. Effective January 1, 2014, this provision was recodified in Texas Estates Code section
453.003.
26
distribution to a part of the estate of a decedent who dies intestate, includes the
decedent’s surviving spouse. Tex. Estates Code § 22.015. Those who receive the
property of the decedent as heirs, devisees, or legatees receive the property subject
to payment of the debts of the decedent. Id. § 101.051. However, if the property is
insufficient to satisfy the debt, the creditor is not entitled to have a personal
judgment against the heir. Chadwick v. Watkins, 258 S.W.2d 194, 196-197 (Tex.
Civ. App.—Texarkana 1953, no writ).
Alternatively, if there is no qualified personal representative of a deceased
spouse’s estate, the surviving spouse, as the surviving partner of the marital
partnership, may sue and be sued to recover community property. Tex. Prob. Code
§ 160.9 However, this provision does not affect the disposition of the deceased
spouse’s property. Id.
B. Background
Appellee sued appellant “Ana Lisa Mines, as Personal Representative of the
Estate of Jorge Luis Mines.” Ana, through counsel, filed an original answer on
behalf of “Ana Lisa Mines, Personal Representative of the Estate of Jorge Luis
Mines” asserting general and specific denials. Ana later filed a first amended
answer with a “specific denial” asserting that she had been sued in the wrong
capacity.10 Ana then filed a motion to enforce settlement agreement asking the
trial court to enforce the alleged agreement between the parties and a motion for
partial summary judgment as the personal representative. Ana filed a notice of rule
11 settlement agreement stating “COMES NOW Presumptive Defendant Ana Lisa
Mines, identified as the Personal Representative of the Estate of Jorge Luis Mines .
9
Effective January 1, 2014, this provision was recodified in Texas Estates Code section
453.003.
10
Appellant asserted that she was sued in the wrong capacity in her first and second
amended answers, but the answers were not verified.
27
. . .” In the third amended answer, Ana filed a “verified specific denial” that she
was sued in the wrong capacity. In her third amended answer she attested that she
“is not liable in the capacity in which she has been sued and there is a defect in the
parties . . . . she has been sued in a capacity which does not exist. . . . She has been
sued as the personal representative of the Estate of Jorge Luis Mines, and she is
not, nor has she ever been a representative of the Estate of Mr. Mines . . . .”
Ana also filed a motion to dismiss for want of jurisdiction arguing that “[a]t
the time of the filing of this lawsuit, and to this date, there has been no
administration opened on the estate, and no person or entity has applied to be or
designated as the personal representative for the estate.” The motion was not
supported by an affidavit but attached a record from the Harris County Clerk
stating that the Clerk’s records “do not indicate probate proceedings for [Jorge
Luis Mines] as of” July 27, 2016. Later, Ana filed a supplement to her motion to
dismiss and attached an affidavit attesting that she has “never been named as an
heir or beneficiary to the Estate of Jorge Luis Mines” and that she is “not aware of
any court proceeding involving the Estate of Jorge Luis Mines” other than the
lawsuit with appellee.
After trial, Ana as Personal Representative filed a motion to disregard the
jury verdict again raising the issue of capacity. The trial court denied this motion.
Just over a month later, before the judgment was rendered, appellee moved for a
trial amendment to “make it clear that the Court’s Judgment is against [appellant]
as surviving spouse, heir at law of, and legal representative of the Estate of Jorge
Mines, deceased.” The trial court granted this amendment. The final judgment
states that it is against “Defendant ANA LISA MINES, as surviving wife of Jorge
Mines, as heir at law of Jorge Mines, and as legal representative of Jorge Mines
. . . .” Ana as Personal Representative filed a motion for new trial raising the
28
capacity issue and asserting that the amendment was too late and the judgment is
void as a matter of law.
C. Analysis
Trial amendments are “alterations in, or additions to, pleadings permitted to
correct errors or supply omissions discovered during the trial.” Fincher v. B & D
Air Conditioning & Heating Co., 816 S.W.2d 509, 514 (Tex. App.—Houston [1st
Dist.] 1991, writ denied). Rule 66 and 63 of the Texas Rules of Civil Procedure
governs trial amendments. Rule 66 of the Texas Rules of Civil Procedure states in
pertinent part:
If evidence is objected to at the trial on the ground that it is not within
the issues made by the pleading . . . the court may allow the pleadings
to be amended and shall do so freely when the presentation of the
merits of the action will be subserved thereby and the objecting party
fails to satisfy the court that the allowance of such amendment would
prejudice him in maintaining his action or defense on the merits. Tex.
R. Civ. P. 66.
Rule 63 of the Texas Rules of Civil Procedure provides in pertinent part:
Parties may amend their pleadings . . . by filing such pleas with the
clerk at such time as not to operate as a surprise to the opposite party;
provided, that any pleadings, responses or pleas offered for filing
within seven days of the date of trial or thereafter, or after such time as
may be ordered by the judge under Rule 166, shall be filed only after
leave of the judge is obtained, which leave shall be granted by the
judge unless there is a showing that such filing will operate as a
surprise to the opposite party. Tex. R. Civ. P. 63.
It is well established that a party may amend its pleading after verdict but
before judgment. See, e.g., Greenhalgh v. Serv. Lloyds Ins. Co., 787 S.W.2d 938,
940 (Tex. 1990); Ortale v. City of Rowlett, 696 S.W.2d 640, 641 (Tex. App.—Dallas
1985, writ ref’d n.r.e.) (“Post-verdict trial amendments have been allowed to make
the pleadings conform to the verdict in various situations.”). When a request to
29
amend pleadings is made under Rule 66 or 63, a court must grant the trial
amendment unless “(1) the opposing party presents evidence of surprise or
prejudice, or (2) the amendment asserts a new cause of action or defense, and thus is
prejudicial on its face, and the opposing party objects to the amendment.” CA
Partners v. Spears, 274 S.W.3d 51, 70 (Tex. Civ. App.—Houston [14th Dist.] 2008,
writ den’d) (quoting State Bar of Tex. v. Kilpatrick, 874 S.W.2d 656, 658 (Tex.),
cert. denied, 512 U.S. 1236 (1994)). The burden of showing surprise or prejudice
rests on the party resisting the amendment. Id.
There are circumstances where a trial amendment may not only be proper but
mandatory. See AON Props., Inc. v. Riveraine Corp., No. 14-96-00229-CV, 1999
WL 12739, at *18 (Tex. App.—Houston [14th Dist.] Jan. 14, 1999, no pet.) (citing
Chapin & Chapin, Inc. v. Texas Sand & Gravel Co., 844 S.W.2d 664, 665 (Tex.
1992)). If the amendment is procedural in nature and merely conforms the pleadings
to the evidence presented, the amendment is mandatory and the trial court must
grant the amendment. Id. If, however, the amendment is substantive in nature, and
changes a party’s cause of action or asserts a new cause of action, the amendment is
not mandatory and the trial court has discretion to deny the amendment. Id. In such
a case, an appellate court will not disturb the decision of a trial court to allow or
refuse a trial amendment unless there is a clear abuse of discretion.11 Id.
The Texas Supreme Court in Chapin held that the amendment—adding a
verified denial—was mandatory because it was of a formal, procedural nature. 844
S.W.2d at 665. The court described a procedural change as one that “simply
11
Our courts favor a liberal construction of the rule and uniformly hold that trial amendments
should be allowed whenever the interests of justice are served. See Clark v. Walker-Kurth Lumber Co.,
689 S.W.2d 275, 280 (Tex. App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.). The test for abuse of
discretion is whether the trial court acted without reference to any guiding rules or principles, or
whether under the circumstances of the case, the trial court's action was arbitrary or unreasonable.
AON Props., 1999 WL 12739, at *18 (citing Koslow’s v. Mackie, 796 S.W.2d 700, 704 (Tex.1990)).
The reviewing court will determine whether the trial court abused its discretion by examining the entire
record. Clark, 689 S.W.2d at 280.
30
conformed the pleadings to the evidence at trial” and does not change a “single
substantive issue for trial.” Id. Similarly, in Krishan v. Ramirez, the court
concluded that the amendment “simply conformed the pleadings and the evidence
presented at trial.” 42 S.W.3d 205, 225 (Tex. App.—Corpus Christi 2001, pet.
denied). In Krishan, the appellee sought leave to amend his pleadings to clarify that
Ramirez was bringing suit in his capacity as guardian of the minor who was heir and
assignee. Id. The court found that the trial court properly granted leave to file the
amendment. Id.
The present case—correcting the name of the defendant from “Ana Lisa
Mines, Personal Representative of the Estate of Jorge Luis Mines” to “Anna Lisa
Mines, as the surviving wife of Jorge Luis Mines, as heir at law of Jorge Luis Mines,
and as legal representative of Jorge Luis Mines, deceased”—is more in the nature of
a procedural change, like Chapin and Krishan, than a substantive change. In this
case, the amendment did not change a single substantive issue for trial. The only
change was formal and procedural: changing the nine or ten words appearing after
Ana’s name.
In the original pleadings, appellee sued Ana as a representative of the estate of
Jorge Luis Mines—he did not sue Ana in her individual capacity. This means that
appellee will look to the property of the estate if he wins, which includes the
separate property of the deceased spouse as well as the community property subject
to the sole or joint management of the deceased spouse. This does not include
appellant’s separate property. Appellee, however, incorrectly named appellant as
the “personal representative of the estate of Jorge Luis Mines” when there was no
personal representative duly qualified.
This error was corrected by the trial amendment. The trial amendment
clarified that appellant was still being sued as a representative of the estate—no
longer as a personal representative, but rather as the surviving spouse, heir at law,
31
and legal representative of the decedent. None of these capacities reach the
surviving spouse’s separate property if a judgment is rendered against appellant.
Because, under the code, being sued as surviving spouse, heir at law, and legal
representative of the decedent also means that appellee will look to the assets of
Jorge Mines, not to the separate property of Ana Mines, the trial amendment is more
in the nature of a procedural change—not a substantive change. Accordingly, the
amendment was mandatory, and the trial court did not err in allowing the
amendment.12
Rule 301 of the Texas Rules of Civil Procedure only requires that “[t]he
judgment of the court shall conform to the pleadings.” Tex. R. Civ. P. 301. In this
case under these facts, the trial court did not err in allowing appellee leave to make
a trial amendment to clarify that Ana Lisa Mines was being sued as the surviving
spouse, heir at law, and legal representative of the estate of Jorge Luis Mines.
Therefore, the judgment of the court conformed to the amended pleadings and was
proper.
We overrule appellants’ seventh and eighth issues.
VIII. CONCLUSION
Having sustained appellants’ issue five in part, we reverse the portion of the
trial court’s judgment awarding future medical care expenses. We affirm the
remainder of the trial court’s judgment as challenged on appeal. Concluding the
evidence is sufficient to support an award of $3,000 in future medical care
12
Even if the amendment was substantive in nature, and therefore not mandatory,
appellants do not meet their burden of showing surprise or prejudice. Although Ana objected to
the proposed trial amendment, the record does not show that she was prejudiced or surprised. To
the contrary, the record is replete with evidence that she was well aware that she had been sued
in the incorrect capacity. Moreover, here due process rights were not violated. Ana was served
with citation, made a general appearance, and was before the trial court at all times relevant to
this appeal.
32
expenses, we suggest a remittitur of $7,000 of the future medical care expenses,
modifying the award of damages in the judgment from $512,859.00 to
$505,859.00. Tex. R. App. P. 46.3. If appellee Kenon D. Murphy timely files the
remittitur with the clerk of this court within twenty days from the date of this
opinion, we shall render an amended judgment modifying the trial court’s
judgment to reflect an award of $505,859.00 in damages and affirming the trial
court’s judgment as so modified. Tex. R. App. P. 43.2(b), 46.3. If the suggested
remittitur is not filed, the case will be remanded to the trial court for further
proceedings limited to redetermination of future medical care expenses of Kenon
D. Murphy. See Larson, 730 S.W.2d at 641 (prevailing party has option to accept
remittitur or have case remanded).
/s/ Ken Wise
Justice
Panel consists of Chief Justice Christopher and Justices Wise and Zimmerer.
33