Henry, Vira M. v. Thompson, Ashley

Opinion issued March 13, 2003 In The Court of Appeals For The First District of Texas NO. 01-01-01211-CV VIRA M. HENRY, Appellant V. ASHLEY THOMPSON, Appellee On Appeal from Probate Court at Law No. 3 Galveston County, Texas Trial Court Cause No. 46,461 MEMORANDUM OPINION Vira M. Henry, appellant, appeals from a jury verdict awarding her $500.00 in actual damages and no punitive damages. In eight issues, appellant argues that the trial court erred in (1) not awarding taxable court costs to appellant; (2) striking part of appellant’s first amended petition; (3) excluding evidence of appellant’s medical records and costs; (4) excluding evidence of a physical altercation involving appellee; (5) admitting evidence of a letter written by appellee after the accident; (6) admitting evidence of appellee’s net worth; (7) failing to grant a mistrial, or order a new trial; and (8) refusing to award prejudgment interest to appellant. We modify the trial court’s judgment to award $1,768.55 in court costs to appellant and, as modified, we affirm. Facts On September 13, 1997, as appellant was stopped, her car was struck from behind by a Ford Explorer. Appellee and another woman got out of the Explorer and asked appellant if she was all right. Appellant had a cut on her forehead. Appellee testified that, after appellant had told her that she was going to call the police, she told appellant that she was leaving to get her mother. Appellee left and did not report the accident. Nearly three months later, Webster Police Detective Wilburn received a tip that appellee was the hit and run driver, and appellee thereafter confessed to being the driver of the Ford Explorer that was involved in the accident. Appellant sued appellee for actual and punitive damages. Appellee stipulated liability, and a jury trial was held to determine damages. The jury returned a verdict awarding $500.00 in actual damages and no punitive damages. The trial court denied appellant’s motion for new trial. Award of Court Costs In her first issue, appellant argues that the trial court erred in not awarding her taxable court costs. See Tex. R. Civ. P. 131. Appellee concedes that appellant, as the successful party, should have been awarded taxable court costs. Accordingly, we modify the judgment to award taxable court costs in the amount of $1,768.55 to appellant. We sustain issue one. Motion to Strike Appellant’s First Amended Petition In her second issue, appellant argues that the trial court erred in striking part of her first amended petition on the ground that it was not timely submitted. Appellant had attempted to allege violations of the penal code by appellee, but the trial court struck that part of the petition. The petition was filed seven days before trial, and appellee concedes that the petition was timely submitted, but argues that appellant was not harmed by the trial court’s error. Appellant did not need to allege violations of the penal code to establish the negligence or negligence per se of appellee because appellee had already stipulated that she was liable. Appellant complains that she was harmed because she was not able to mention the penal code during trial, and, thus, was precluded from using the alleged penal code violations to support an award of punitive damages. In determining whether appellant was harmed by the error, we must decide if the error probably caused the rendition of an improper judgment. Tex. R. App. P. 44.1. Parties may recover punitive damages if they show by clear and convincing evidence that the harm for which they seek damages resulted from (1) fraud; (2) malice; or (3) a wilful act or omission or gross neglect in a wrongful death action. Tex. Civ. Prac. & Rem. Code Ann. § 41.003(a) (Vernon 1997). If a party relies on another statute that establishes a cause of action and specifically provides for punitive damages, then the specified circumstances or requisite culpable mental state must be proved by clear and convincing evidence. Tex. Civ. Prac. & Rem. Code Ann. § 41.003(c). Appellant could not have used the penal code as a basis for an award of punitive damages. The penal code does not establish a private cause of action, and certainly does not authorize an award of punitive damages in a private cause of action. A.H. Belo Corp. v. Corcoran, 52 S.W.3d 375, 379 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). Accordingly, because the alleged violations of the penal code were not needed to establish negligence or negligence per se, and because a violation of the penal code cannot be used as a basis for an award of punitive damages, we cannot determine that appellant was harmed by the trial court’s error in striking a portion of appellant’s first amended petition. We overrule issue two. Evidentiary Rulings In issues three through five, appellant argues that the trial court erred in excluding evidence of medical and billing records, erred in excluding the testimony of a hospital billing director, erred in excluding evidence of a physical altercation involving appellee, and erred in allowing appellee to read a letter she had written after the accident. Medical Expenses Appellant attempted to introduce her medical bills into evidence, and planned to call a director of medical records to testify that the expenses were reasonable and necessary. The trial court excluded the medical bills and the testimony of the records custodian, stating that, because an affidavit was not filed pursuant to the Texas Civil Practice and Remedies Code, a medical doctor would be required to prove that the medical expenses were reasonable and necessary. Tex. Civ. Prac. & Rem. Code Ann. § 18.001 (Vernon 1997) A claim for medical expenses must be supported by evidence that the expenses are reasonable and necessary. Nat’l Union Fire Ins. Co. v. Wyar, 821 S.W.2d 291, 297 (Tex. App.—Houston [1st Dist.] 1991, no writ). An affidavit filed under section 18.001 may serve as sufficient evidence to support a finding of fact by a judge or jury that the expenses were reasonable and necessary. Id. If a party fails to prove the reasonableness and necessity of medical expenses through the submission of an affidavit in compliance with section 18.001, expert testimony will be required. Jackson v. Gutierrez, 77 S.W.3d 898, 902 (Tex. App.—Houston [14th Dist.] 2002, no pet.); Rodriguez-Narrera v. Ridinger, 19 S.W.3d 531, 532 (Tex. App.—Fort Worth 2000, no pet.). When a party has not complied with section 18.001, the reasonableness and necessity of medical expenses cannot be proved by the live testimony of a non-expert records custodian. Castillo v. Am. Garment Finishers Corp., 965 S.W.2d 646, 654 (Tex. App.—El Paso 1998, no pet.). When a party has not complied with section 18.001, and attempts to admit evidence of medical bills without the required expert testimony, a trial court does not err in excluding evidence of medical billing. Id. Appellant did not file an affidavit pursuant to section 18.001(b), so expert testimony was required to prove that the medical expenses were reasonable and necessary. The only evidence that appellant had to support the reasonableness and necessity of the medical expenses was from a director of medical records. In appellant’s bill of exception, the director of medical records never testified that appellant’s medical expenses were reasonable or necessary, and she admitted that she was not a medical doctor, and had no medical background or training. We agree with the Castillo court that a non-expert medical records custodian cannot provide the required expert testimony to prove the reasonableness and necessity of medical expenses. The purpose of section 18.001 is to dispense with the required expert testimony in situations where the medical expenses are uncontested. Id. The code does not provide that a records custodian can provide competent testimony when the medical expenses are contested. In this case, because an affidavit was not filed in accordance with the rules, appellee was not given an opportunity to file a controverting affidavit to contest the reasonableness and necessity of the medical expenses. Accordingly, because appellant did not comply with section 18.001, and because appellant’s witness could not provide the required expert testimony, we hold that the trial court did not err when it excluded evidence of appellant’s medical bills, as well as the testimony of the director of medical records. Physical Altercation The trial court also excluded appellant’s evidence of a post-accident physical altercation that appellee had allegedly been involved in on the grounds that it was not relevant. Appellant argues that the post-accident conduct was important to show that appellee was indifferent to the rights of others. Evidence of appellee’s involvement in a physical altercation after the accident is character evidence, and is inadmissible under the Texas Rules of Evidence. Tex. R. Evid. 404. Appellant does not argue that evidence of the altercation fits an exception to the general rule 404 requirement, but instead argues that, because appellee was allowed to read a letter to the jury that had been written but not sent to appellant after the accident, the “sauce for the goose . . . was obviously not sauce for the gander . . . when it came to rulings on post-accident evidence.” Having determined that the trial court did not abuse its discretion in excluding evidence of the physical altercation involving appellee, we review the trial court’s admission of a letter written by appellee after the accident. The Letter Appellant objected to the admission of appellee’s letter on the grounds that it was not relevant and was self-serving. The letter, which was approximately three pages long, stated appellee’s plans for the future, stated that appellee was a moral person and was scared at the time of the accident, and that she was sorry for her actions. We agree with appellant that the letter, written by the appellee approximately one year after the accident, was self-serving and not relevant to the issue of damages. See Owens v. Navarro County Levee Improvement Dist. No. 8, 281 S.W. 577, 579-80 (Tex. Civ. App.—Waco 1925, no writ) (holding that letter written by appellant to appellee regarding the damages that had been caused was self-serving and properly excluded); Largent v. Beard, 53 S.W. 90, 91 (Tex. Civ. App.—Dallas 1899, no writ) (trial court erred in admitting evidence of letter written after controversy because letter was self-serving and not relevant to any issue in the case); Boehringer v. A.B. Richards Med. Co., 29 S.W. 508, 511 (Tex. Civ. App.—Dallas 1894, no writ) (holding that self-serving letter by appellant to appellee, after controversy, was not relevant to any issue in case, and was therefore properly excluded). In determining whether appellant was harmed by the error, we must decide if the error probably caused the rendition of an improper judgment. Tex. R. App. P. 44.1. Our examination of the record reveals that most of the information the jury could have gleaned from the contents of the letter had already been testified to by appellee. Appellee had already testified as to what her future plans were, had testified that she was scared at the time of the accident, and had felt horrible about her actions. Accordingly, because many of the feelings of appellee, as written in the letter, had already been testified to by appellee, we cannot determine that the reading of the letter probably caused the rendition of an improper judgment. Issues three through five are overruled. Evidence of Appellee’s Net Worth In her sixth issue, appellant argues that appellee gave a “skewed net worth presentation.” Appellant contends that while appellee was able to testify as to her own net worth, she did not testify as to the net worth of her parents. At trial, appellant objected to appellee’s attorney’s characterization of punitive damages as “an element of damage,” but appellee’s attorney corrected himself and the trial court did not rule on appellant’s objection. Appellant did not thereafter object to appellee’s discussion of her net worth, and appellant does not explain in his brief how or when he objected to appellee’s alleged skewed presentation of her net worth. To preserve a complaint for review, a party should timely object on specific grounds, and should obtain an adverse ruling. Tex. R. App. P. 33.1(a). Appellant did neither. Accordingly, we hold that appellant’s complaint as to appellee’s testimony of her net worth has not been preserved for our review. We overrule issue six. Failure to Grant Mistrial or New Trial In her seventh issue, appellant argues that, in light of the trial court’s evidentiary rulings and failure to control the parties and the witnesses, appellant was not able to have a fair trial. Appellant contends that the trial court failed to control the parties and witnesses by allowing appellee and appellee’s attorney to cry in front of the jury. Parties are entitled to a fair and impartial trial. See City of Abiline v. Downs, 367 S.W.2d 153, 155-56 (Tex. 1963). If the right of a fair trial is “imperiled by anything in the course of the trial, it is the . . . duty of the trial judge to declare a mistrial . . . .” Bauer v. Bauer, 145 S.W.2d 599, 600 (Tex. App.—El Paso 1940, no writ). Manifestations of emotion, such as weeping or crying, are not grounds for a mistrial in the absence of a showing of an extreme prejudicial effect on the jury. Consol. Underwriters v. Foster, 383 S.W.2d 829, 836 (Tex. Civ. App.—Tyler 1964, writ ref’d n.r.e.). After reviewing the entire record, we hold that the trial court did not err in determining that the manifestation of emotion by appellee did not cause an extreme prejudicial effect on the jury. During the trial, after appellee had cried on the witness stand, appellant questioned appellee about her emotions, asking, “[Y]ou can turn it on and turn it off when you want to. Can’t you?” Appellant later asked, “You got Kleenex up there? Ms. Thompson, before the jury came back in, during the course of what the lawyers call voir dire, you were not crying. Were you?” We note that the jury is the judge of the credibility of witnesses, and, thus, was able to evaluate the authenticity of appellee’s emotions while testifying. See Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988). We believe the jury was capable of evaluating appellee’s conduct in this case and was likely not prejudiced by it. As for the other evidentiary rulings, we have already discussed those elsewhere in this opinion, and where error occurred, we determined that it did not cause the rendition of an improper judgment. Accordingly, we hold that the trial court did not err in refusing to order a mistrial or grant a new trial. We overrule issue seven. Award of Prejudgment Interest In her eighth point of error, appellant argues that the trial court erred in refusing to award prejudgment interest to her. Appellant filed two motions after the jury verdict, and neither of them brought the alleged error to the attention of the trial court. Appellant does not explain how the trial court was made aware of appellant’s complaint regarding prejudgment interest. Accordingly, appellant has waived her right to have her complaint reviewed upon appeal. Larrumbide v. Doctors Health Facilities, 734 S.W.2d 685, 693 (Tex. App.—Dallas 1987, writ denied) (“by failing to request an award of prejudgment interest in their motion for judgment, or to complain in the trial court of the failure to award prejudgment interest, the [appellant] waived any error”); Western Const. Co. v. Valero Transmission Co., 655 S.W.2d 251, 256 (Tex. App.—Corpus Christi 1983, no writ) (when party fails to bring trial court’s failure to award prejudgment interest to the attention of the trial court, error has not been preserved for appeal); see also Allright, Inc. v. Pearson, 735 S.W.2d 240, 240 (Tex. 1987). We overrule point of error eight.Conclusion We modify the trial court’s judgment to award taxable court costs in the amount of $1,768.55 to appellant and, as modified, we affirm. Sherry Radack Chief Justice Panel consists of Chief Justice Radack and Justices Nuchia and Hanks.