Kristan Pennington v. Paul Cherry

NO. 07-99-0485-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A SEPTEMBER 27, 2001 ______________________________ KRISTAN PENNINGTON, APPELLANT V. PAUL CHERRY, APPELLEE _________________________________ FROM THE 356TH DISTRICT COURT OF HARDIN COUNTY; NO. 37,888; HONORABLE BRITT E. PLUNK, JUDGE _______________________________ Before BOYD, C.J., and REAVIS and JOHNSON, JJ. ON MOTION FOR REHEARING Appellant Kristan Pennington has filed a motion for rehearing in which she advances five grounds she believes show error in our original opinion. Remaining convinced that our original disposition was correct, we overrule appellant's motion. Appellant initially takes issue with our observation that the argument in support of her second issue did not comply with the requirement of Texas Rule of Appellate Procedure 38.1(h), which requires record references in support of an appellant's issues. She points us to the record references given in the statement of facts as support for the argument concerning her medical expenses. An examination of Rule of Appellate Procedure 38.1 reveals that supporting references to the record are required in both the statement of facts, 38.1(f), and in the argument, 38.1(h). Compliance with subsection f does not excuse a party from compliance with the remainder of the rule. Appellant next seeks to rely on Rule of Appellate Procedure 38.1(f) for the proposition that we must accept as true the statement in her original brief that the parties stipulated to $2,692.25 in reasonable and necessary medical expenses because the statement was not contradicted in appellee's brief. This argument evidences a misunderstanding of the issue presented by this case. The existence of the stipulation was not in question. The issue was whether counsel's repeated misstatement of the amount of stipulated medical expenses resulted in invited error or waiver. We held that it did, precluding reliance on the stipulation on appeal. Appellant's motion also contains a list of 12 specific medical bills with record references in support of her statement that "the jury was presented with direct testimony that of the amounts [sic] for $2617.25." Our original opinion stated that appellant only presented testimony of $1,495 in medical expenses. Specifically, she did not testify to the amount contained in her exhibit numbers 5, 11, and 12d. Appellant has attached portions of the trial record as an appendix to her motion. These documents confirm there was no testimony on the amounts of the bills shown in exhibits 5 and 12d. With regard to exhibit 11, which is a bill for $1,057 for physical therapy, the copy of the reporter's record attached to appellant's motion differs from the official record filed in this court by the court reporter. The reporter's record on file in this case shows that appellant was asked the total amount of the bill in exhibit 11, but it does not contain a response. In response to an inquiry from this court, the parties have agreed, pursuant to Texas Rule of Appellate Procedure 34.6(e), that the excerpt attached to appellant's motion correctly reflects the trial proceeding. When we include the testimony concerning $1,057 in expenses reflected in exhibit 11, the total medical expenses shown by appellant's testimony is $2,552. Parenthetically, the citations provided by appellant do not support her contention that the exhibits showing her medical expenses were published to the jury. Regardless of the specific amount of medical expenses shown by appellant's testimony, our resolution of this issue was based on the absence of evidence that those expenses were reasonable and necessary. Appellant seeks to challenge that holding by referring to the party's stipulation which, she contends, obviates the need for additional evidence on this issue. As noted above, we continue to adhere to the view that counsel's repeated statements during the trial that the parties stipulated to reasonable and necessary medical expenses of $1,765 amounted to invited error and precludes her reliance on the stipulation as to any additional amounts. She presents no argument challenging the application of the doctrine of invited error. See Austin Transp. Study Policy Advisory Committee v. Sierra Club, 843 S.W.2d 683, 689 (Tex.App.--Austin 1992, writ denied). We overrule appellant's first issue on rehearing. Appellant's second issue is also based on the argument that the evidence "incontrovertibly and unequivocally established [her] medical expenses" of $2,617.25. She again fails to address the well-established requirement discussed in our original opinion that the evidence show expenses be reasonable and necessary. See Oil Country Haulers, Inc. v. Griffin, 668 S.W.2d 903, 904 (Tex.App.-Houston [14th Dist.] 1994, no writ); Tex. Civ. Prac. & Rem. Code § 18.001 (Vernon 1997). We overrule appellant's second issue. In her third issue on rehearing, appellant challenges our reliance on her counsel's statements that the stipulated reasonable and necessary medical expenses were $1,765. She argues that we provided no citation to authority supporting what she characterizes as our reliance on statements of counsel rather than the evidence presented at trial. We initially note that in addition to counsel's oral statements as to the amount of the stipulation, appellant made no objection to submission of a jury question stating the parties stipulated to $1,765.14 in medical expenses. The doctrine of invited error is well established in Texas jurisprudence. See General Chemical Corp. v. De La Lastra, 852 S.W.2d 916, 920 (Tex. 1993); San Antonio Traction Co. v. Settle, 104 Tex. 142, 135 S.W. 116, 118 (1911). It is an equitable doctrine which prohibits a party from acting in a way that misleads a trial court into committing error. Id. at 118. That is precisely what occurred at trial when appellant's counsel repeatedly misstated the amount of the stipulation and failed to object to the inaccurate recitation in the jury question. As noted above, appellant has failed to present any authority showing the inapplicability of that doctrine here. We overrule appellant's third issue on rehearing. In her fourth issue, appellant concedes that her testimony was insufficient to establish that the medical expenses were reasonable and necessary. She also assumes, for purposes of this issue, that counsel's misstatement of the amount of the parties' stipulation waived her right to rely on the stipulated amount, but argues the waiver would not extend to the reasonableness and necessity of the expenses. In effect, she seeks to separate the stipulation concerning the amount of medical expenses and their reasonableness and necessity. We cannot accept that distinction. None of the discussion regarding the stipulation supports the distinction now urged by appellant. By representing at trial that the parties stipulated that Cherry's negligence caused $1,765 in medical expenses, appellant cannot rely on the stipulation to support a greater amount. We overrule her fourth issue. Appellant's fifth and final issue challenges our failure to award costs to her on appeal. She argues such an award is mandated by Rule of Civil Procedure 139 and Rule of Appellate Procedure 43.4 because she prevailed on one issue on appeal. The issue on which appellant prevailed was de minimus compared to the remainder of the judgment, which was affirmed and did not make her a prevailing party under the rules cited. Keene Corp. v. Gardner, 837 S.W.2d 224, 232 (Tex.App.-Dallas 1992, writ denied). We overrule appellant's final issue and her motion for rehearing. John T. Boyd Chief Justice Do not publish.