W. Ray Guy and Terri Guy v. David Cersonsky and Dora Cersonsky

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-99-00219-CV W. Ray Guy and Terri Guy, Appellants v. David Cersonsky and Dora Cersonsky, Appellees FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT NO. 97-01934, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING Appellees David and Dora Cersonsky sued appellants W. Ray and Terri Guy, seeking injunctive relief, exemplary damages, and damages for nuisance and intentional infliction of emotional distress. (1) A jury found in favor of the Cersonskys on each cause of action, awarding David Cersonsky $50,000 in lost wages, $75,000 in mental-anguish damages, and $1000 in exemplary damages, and Dora Cersonsky $75,000 in mental-anguish damages and $1000 in exemplary damages. (2) The district court rendered judgment consistent with the jury's award. (3) On appeal, the Guys argue that the evidence is legally and factually insufficient to support the jury's findings of intentional infliction of emotional distress, lost wages, mental-anguish damages, and exemplary damages. Additionally, the Guys argue that the judgment is defective because prejudgment interest was calculated incorrectly. We will reverse and remand the issue concerning prejudgment interest and otherwise affirm the district court's judgment. BACKGROUND The Guys and the Cersonskys live on adjoining property. The only access to the Cersonsky property is across a private easement on the Guy property. The first disagreement between the neighbors occurred in the spring of 1996, about a year after the Cersonskys moved to their property. The Cersonskys sought to build a gate where the access easement reaches their property. The Guys objected, arguing that when the gate was closed vehicles destined for the Cersonsky property would be forced to turn around on the Guy property. When David Cersonsky began constructing the gate, the Guys approached him and again voiced their objections. David testified that Ray Guy challenged him to a fight and threatened to sue him if he pursued his plan to construct the gate. The Cersonskys nevertheless installed the gate. In October, there were encounters between Dora Cersonsky and Ray concerning the gate. At one of the encounters, Ray threatened legal action if the gate was not removed. Dora testified that she found these confrontations to be frightening and upsetting. The Cersonskys' trash pick-up was terminated and mail service and UPS deliveries were interrupted due to the Guys' complaints about vehicles on their property. The Guys installed halogen lights on their house, directing them so that they would shine into the windows of the Cersonskys' home, and began playing loud music directed toward the Cersonskys' property. The Cersonskys sought assistance from their homeowners' association and the sheriff's department and had their attorney send a letter to the Guys demanding that the Guys cease their activities. The Guys' behavior remained unchanged. In November, the Cersonskys built shields on their property in an attempt to block the lights. The Guys responded by using portable lights to bypass the shields. The activities with the lights and music continued until February 1997, when the Cersonskys sued the Guys. DISCUSSION Intentional Infliction of Emotional Distress By their first issue, the Guys argue that the jury's findings of intentional infliction of emotional distress are legally and factually insufficient because their behavior did not rise to the level of outrageousness required by Twyman v. Twyman, 855 S.W.2d 619, 620 (Tex. 1993). Twyman held that "liability for outrageous conduct should be found 'only if the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable, in a civilized community.'" 855 S.W.2d at 620 (quoting Restatement (Second) of Torts § 46 cmt. d (1965)). The jury found in favor of the Cersonskys on both their claims of intentional infliction of emotional distress and nuisance. The judgment does not specify upon which theory of recovery it is based. The Guys do not assign error to the nuisance finding. When a judgment may rest upon more than one ground, the party aggrieved by the judgment must assign error to each ground or the judgment will be affirmed on the ground to which no complaint is made. See Johnson v. Coggeshall, 578 S.W.2d 556, 560 (Tex. Civ. App.--Austin 1979, no writ). In such situations, the appellant's right to complain of the ruling to which no error was assigned is waived. See id. Because the Guys do not complain on appeal about all possible bases for the judgment, the district court's determination of liability is affirmed. We overrule the Guys' first issue. See Tex. R. App. P. 47.1. Lost Wages By their second issue, the Guys argue the evidence is legally and factually insufficient to support the jury finding of $50,000 in lost wages to David Cersonsky. When presented with a no-evidence or legal-sufficiency challenge, we consider all evidence in the light most favorable to the prevailing party, indulging every reasonable inference in that party's favor. See Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex. 1998); Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994). We will uphold the finding if more than a scintilla of evidence supports it. See Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995). In reviewing a factual-sufficiency challenge, we must consider and weigh all the evidence and should set aside the judgment only if the evidence is so weak or so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). We cannot substitute our judgment for that of the trier of fact merely because we would reach a different fact conclusion. See WesTech Eng'g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 196 (Tex. App.--Austin 1992, no writ). Compensation for the loss of earnings resulting from a personal injury is to be measured by the amount of money that the injured person might reasonably have earned in the same time by the pursuit of his ordinary occupation or by the amount he commonly earned. See Tucker v. Lightfoot, 653 S.W.2d 587, 591 (Tex. App.--San Antonio 1983, no writ). (4) Proof of loss of earnings requires evidence of the plaintiff's actual earnings prior to his injury and his earnings or possible earnings after it. See City of Rosenberg v. Renken, 616 S.W.2d 292, 294 (Tex. Civ. App.--Houston [14th Dist.] 1981, no writ). [L]oss of earnings is much like other elements of damages, such as impairment of capacity to earn money. Value of loss of earnings can sometimes be established with some degree of exactness and sometimes proof cannot be made. The law only exacts the kind of proof of which the fact to be proved is susceptible, but it does exact that. However, if the jury is not so informed as to permit them to allow for the full extent of such loss they can allow for the part of which they are sufficiently informed. Tucker, 653 S.W.2d at 593. David Cersonsky sought lost earnings for the weeks from October 11, 1996 to the first week of April 1997. He testified that he designs microchips. He works for a company that contracts his services to high-tech businesses and receives $65 an hour for his services. Although his work fluctuates depending on the number and nature of projects he is assigned, he testified that on average he works 55 hours per week. He introduced time sheets that showed the number of hours per week he worked from January 1996 through April 1997. To establish the amount of hours that he lost as a result of the Guys' behavior, David subtracted the number of hours he worked each week in October 1996 through the first week of April 1997 from his average 55-hour workweek. He then totaled these hours and multiplied them by his hourly rate of $65 an hour. Further, David testified that there was a lull in the hours he worked after April 1997, but he eventually returned to working an average of 55 hours per week. David's testimony indicates that he was able to work before and after the Guys' behavior affected his work schedule. Further, the jury was sufficiently informed of the amount of wages that he lost in the time period at issue. We hold that the evidence was legally and factually sufficient to justify the amount awarded by the jury. The Guys' second issue is overruled. Mental-Anguish Damages The jury awarded David and Dora Cersonsky $75,000 each in mental-anguish damages. By their third and fourth issues, the Guys argue that there was no evidence or insufficient evidence to support these damages. We will apply the standards for legal and factual sufficiency set forth above. "[A]n award of mental anguish damages will survive a legal sufficiency challenge when the plaintiffs have introduced direct evidence of the nature, duration, and severity of their mental anguish, thus establishing that there was a substantial disruption in [their] daily routine." Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995). In the absence of such direct evidence, we apply traditional no-evidence standards to determine whether the record reveals any evidence of "a high degree of mental pain and distress" that is "more than mere worry, anxiety, vexation, embarrassment, or anger" to support any award of damages. Id. (citing J.B. Custom Design & Bldg. v. Clawson, 794 S.W.2d 38, 43 (Tex. App.--Houston [1st Dist.] 1990, no writ)). Direct evidence may be in the form of the parties' own testimony, that of third parties, or that of experts. See id. Some types of disturbing or shocking injuries, such as a threat to one's physical safety, or death or serious injury to a family member, have been found sufficient to support an inference that the injury was accompanied by mental anguish. See id. There must also be evidence to justify the amount awarded. See Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996). Although the impossibility of any exact valuation of mental anguish requires that juries be given a measure of discretion in finding damages, that discretion is limited. See id. Juries cannot "simply pick a number and put it in the blank." Id. They must find an amount that "would fairly and reasonably compensate" for the loss. Id. Dora Cersonsky testified at length regarding the mental anguish she endured as a result of the Guys' behavior. She stated that she lost sleep and was upset as a result of the lights that shone into her home. She also testified that after confrontations with Ray Guy she was "walking on egg shells," "afraid to do anything," "terrified," and "scared to death." She suffered from nausea, illness, and weight loss. She compared the experience to the fear that she felt after being burglarized and said that her relationships with her husband and children had suffered. David Cersonsky presented similar testimony regarding his mental anguish. He also testified to the negative effect that the Guys' behavior had on his personal relationships. He said that he feared angering Ray Guy and being sued. The lights shone into his home made him feel as though he was "under siege in [his] home." He compared the stress induced by the Guys' behavior to that he endured after being in a terrible car accident. He testified to being depressed and under "extreme emotional distress" from October 1996 to February 1997. We hold that both David and Dora Cersonsky presented legally and factually sufficient evidence of compensable mental anguish. The Cersonskys, however, must also have presented evidence to justify the amount awarded. See Saenz, 925 S.W.2d at 614. In Saenz, the supreme court held that there must be evidence that the amount of damages awarded by the jury for mental anguish was fair and reasonable but acknowledged that such determination is often difficult: There must be evidence that the amount found is fair and reasonable compensation, just as there must be evidence to support any other jury finding. Reasonable compensation is no easier to determine than reasonable behavior--often it may be harder--but the law requires factfinders to determine both. And the law requires appellate courts to conduct a meaningful evidentiary review of those determinations. Id. The jury awarded David and Dora $75,000 each for mental anguish. The Guys argue that our decision in Casteel v. Crown Life Ins. Co., 3 S.W.3d 582 (Tex. App.--Austin 1997), rev'd on other grounds, 43 Tex. Sup. Ct. J. 348 (Tex. 2000), requires that the Cersonskys present evidence as to the value of their mental-anguish damages. In Casteel, this Court held that the evidence supported a finding that Casteel "suffered from past mental anguish." 3 S.W.3d at 593. We concluded, however, that "nothing in the record shows that the award of $6,000,000 is fair and reasonable compensation for that anguish." Id. (citing Saenz, 925 S.W.2d at 614). Casteel does not hold that to recover mental-anguish damages, a plaintiff must present direct evidence of the value of mental anguish. Casteel does no more than adhere to the Saenz holding that there must be evidence to justify the amount awarded and that the amount must be fair and reasonable. See id. Dora Cersonsky first testified that she had assigned $150,000 to her "emotional distress." She stated that her distress was not something she could put a mathematical formula to and could not tell the jury how much every minute was worth. In response to a question concerning what influenced her in arriving at the amount of these damages, she testified: Probably the fact that it was something we had to think about every day. When we woke up in the morning, we didn't know what the day was going to hold. The fact that the lights were on and later when they were shielded, just knowing that they . . . were on us and that these people had turned them on us on purpose, that . . . it wasn't an accident, that they were doing this intentionally. And basically, you know, being nauseated, because I was sick to my stomach over the whole situation and not being able to eat. And . . . the time it took away from my family. I wasn't there a hundred percent for them. . . . I'm an at-home mom and my job is to raise my children and take care of my family, and I feel like this infringed on that. I couldn't do it. . . . I wasn't the person that I normally was during this time period. She further stated that she did not feel that the amount of money she was requesting was beyond what she had suffered. On cross-examination, she testified that the $150,000 was the amount she attributed to both her and her husband's emotional distress, or $75,000 for each of them. David Cersonsky testified that this was a fair division but the amount was difficult to determine: It's not an easy thing to calculate. Both my wife's opinion and mine beginning with, you know, how do you do this. . . . [I]t's not something that's easy to do. And we both felt as though we wouldn't do it again for anything in this world, but we had to put a limit on it. And we came up with what we felt was a reasonable amount of $150,000 for both of us. Recognizing that reasonable compensation is not easy to determine, we believe that the jury was not simply left to pick a number and put it in the blank. See Saenz, 925 S.W.2d at 614. We hold that there is more than a scintilla of evidence that the amount the jury awarded the Cersonskys for mental anguish was fair and reasonable and that such evidence is not so weak as to render the judgment clearly wrong or unjust. See Crye, 907 S.W.2d at 499; Cain, 709 S.W.2d at 176. Finally, the Guys argue that the phrase "non-economic damages" as used in the Cersonskys' pleadings did not provide fair notice that the Cersonskys were seeking mental-anguish damages. Before trial, the Guys specially excepted to the Cersonskys' original petition on the grounds that the relief sought failed to put the Guys on fair notice of what needed to be defended against at trial. In amended petitions following these special exceptions, the Cersonskys more specifically stated the amounts sought as "economic" and "non-economic" damages. The Guys made no special exception to the amended petitions. The Guys did not object to the evidence introduced at trial concerning the extent of mental-anguish damages; the question the district court submitted to the jury inquiring what, if any, monetary amount would reasonably compensate each Cersonsky for "physical pain and mental anguish"; or the definition of "mental anguish" the court provided the jury. Having failed to except to the lack of pleadings at any point during trial, the Guys have waived any error. See Murray v. O & A Express, Inc., 630 S.W.2d 633, 637 (Tex. 1982). Because the Guys tried the issue of mental-anguish damages by consent, we do not determine whether the pleadings provided the Guys sufficient notice of the type of damages sought. The Guys' third and fourth issues are overruled. Prejudgment Interest By their fifth issue, the Guys argue that the judgment entered by the court was erroneous because it computes prejudgment interest as to Dora's claims at 10% interest compounded annually. Johnson & Higgins, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 532 (Tex. 1998), holds that equitable prejudgment interest shall be computed as simple interest. The Cersonskys concede that simple interest rather than compound interest is the appropriate measure. We sustain the Guys' fifth issue, reverse the district-court judgment to the extent that it awards $13,947.01 in prejudgment interest to Dora Cersonsky, (5) and remand this matter to the district court to recalculate prejudgment interest on that portion of the judgment in a manner consistent with Johnson & Higgins. See 962 S.W.2d at 532. Exemplary Damages By their sixth issue, the Guys argue that the exemplary damages awarded to David and Dora Cersonsky cannot be upheld because "there is no evidence and/or insufficient evidence in the record to show that the Guys committed any distinct willful tort." Exemplary damages may be recovered in an action for nuisance. See Bisso v. Southworth, 10 S.W. 523, 524 (Tex. 1888). Further, the Guys did not object to the district court's submitting the question of exemplary damages to the jury, did not assert the issue in their motion for judgment notwithstanding the verdict, and did not raise it in their motion for new trial. See Tex. R. App. P. 33.1(a)(1) (complaint must be made to trial court as prerequisite to raising issue on appeal). The Guys' sixth issue is not preserved for appeal. CONCLUSION We reverse that portion of the district-court judgment that awards Dora Cersonsky prejudgment interest compounded annually and remand it to the district court for entry of a new judgment awarding Dora simple prejudgment interest. In all other respects, we affirm the district court's judgment. Lee Yeakel, Justice Before Chief Justice Aboussie, Justices Smith and Yeakel Affirmed in Part; Reversed and Remanded in Part Filed: May 11, 2000 Do Not Publish 1. The Cersonskys also sued Guycommunications Company, Inc. ("Guycom") alleging, inter alia, that Guycom and the Guys conspired against them and were thus jointly and severally liable. Before trial, Guycom and the Cersonskys settled their disputes and Guycom was dismissed from the suit. 2. The jury awarded David and Dora Cersonsky exemplary damages in the amount of $500 each against Ray Guy and $500 each against Terri Guy. 3. The district court also granted a permanent injunction against the Guys that is not at issue in this appeal. 4. In arguing this issue, both parties rely on cases that discuss the applicable standards in evaluating a finding of lost profits. See, e.g., Holt Atherton Indus. v. Heine, 835 S.W.2d 80 (Tex. 1992); First S. Trust Co. v. Szczepanik, 880 S.W.2d 10 (Tex. App.--Dallas 1993), rev'd, 883 S.W.2d 648 (Tex. 1994). Although David's work possessed characteristics similar to that of self-employment, decisions evaluating findings of lost wages are more appropriate for this case. David worked for a company that would contract his services to businesses. He testified that he considered himself an "actual employee" of the company and he turned in time sheets to the company. Further, in Tucker v. Lightfoot, the court of appeals applied principles of lost wages to a plaintiff who was the "sole employee of his own business." See 653 S.W.2d 587, 591 (Tex. App.--San Antonio 1983, no writ). 5. The district-court judgment also awards David Cersonsky compounded prejudgment interest; however, the Guys appeal only Dora's award. Having failed to except to the lack of pleadings at any point during trial, the Guys have waived any error. See Murray v. O & A Express, Inc., 630 S.W.2d 633, 637 (Tex. 1982). Because the Guys tried the issue of mental-anguish damages by consent, we do not determine whether the pleadings provided the Guys sufficient notice of the type of damages sought. The Guys' third and fourth issues are overruled.