Illey v. Hatley

ON MOTION FOR REHEARING

Our judgment of affirmance was conditioned upon appellee’s remittance of a portion of the damages awarded for future medical expenses, specifically future nursing care. Appellee declines to remit any sum and presents further argument on his motion for rehearing.

Hatley complains of the requirement of remittitur of $826,000 (future medical expenses). Although Hatley agrees there is no evidence as to the hourly rate of nursing services, he says the jury could infer the cost of future nursing services, perhaps by family members, by applying the minimum wage rate.

We first note that there were no special issues submitted which addressed future nursing care and expenses. Compare Texas Employers Insurance Association v. Choate, 644 S.W.2d 112, 115 (Tex.App.—Amarillo 1982, no writ) (jury issue on nursing services). Even assuming that future nursing services may be subsumed under future medical care, which was generally pled and on which a special issue was submitted, the record is devoid of evidence showing the need for custodial nursing care or the reasonable cost of such nursing care. To the contrary, both Dr. Kissell and Dr. Kokemoor testified that Hatley could perform the normal functions of daily living himself (eating, dressing, personal hygiene). Compare Transport Insurance Co. v. Polk, 400 S.W.2d 881 (Tex.1966) (testimony as to necessity for nursing care and reasonable cost of such care). “The rule of requisite certainty in proof consistent with practicality of its production” is not satisfied in our case. Texas Steel v. Recer, 508 S.W.2d 889, 900 (Tex.Civ.App.—Fort Worth 1974, writ ref’d n.r.e.). Simply stated, there is no evidence of the necessity for, or expense of, future nursing services.

Appellee next challenges the decision of this court that it has no jurisdiction to consider appellee’s cross-points.

While the general rule is that the appellee need not file a cost bond to perfect his appeal, TEX.R.CIV.P. 353, where the appellant does not appeal from an entire judgment, the appellee is obligated to perfect an independent appeal from that portion of the judgment which is adverse to him. See Security Lumber Co. v. Weighard Construction Co., 413 S.W.2d 745 (Tex.Civ.App.—Texarkana 1967), aff'd on other grounds sub nom., University Savings & Loan Association v. Security Lumber Co., 423 S.W.2d 287 (Tex.1968). Hatley, by cross-points, seeks relief from a part of the judgment not brought up for appellate review. His right to urge cross-points without prosecuting an independent appeal is subject to the limitation that the cross-points must affect the appellant’s interest or bear on matters presented on appeal. See Connell Construction Co. v. Phil Dor Plaza Corp., 158 Tex. 262, 310 S.W.2d 311, 314 (1958); compare Dallas Electric Supply Co. v. Branum Co., 143 Tex. 366, 185 S.W.2d 427, 430 (1945); Traveler’s Indemnity Co. v. Pollard Friendly Ford Co., 512 S.W.2d 375 (Tex.Civ.App.—Amarillo 1974, no writ); Scull v. Davis, 434 S.W.2d 391 (Tex.Civ.App.—El Paso 1968, writ ref'd n.r.e.).

Appellant properly predicated and raised his appellate “no evidence” point in his motion for new trial. Rosas v. Shafer, 415 S.W.2d 889 (Tex.1967). We hold there is no evidence to support the jury finding of future medical expenses in the sum of $1,000,000.00. However, we hold there is evidence to support the award of damages for future medical expenses in the sum of $174,000.00. Accordingly, we reverse and render that portion of the judgment over and above $174,000.00, that is, the award of damages for future nursing care. See Butler v. Hanson, 455 S.W.2d 942, 944 (Tex.1970) as to no evidence standard of review. We modify and reform the judgment as to future medical expenses, the *513judgment to conform to the sum proved by the evidence: $174,000.00. The points presented by appellee in his motion for rehearing are overruled.

As reformed, the judgment is affirmed.