Aramark Healthcare Support Services, Inc. D/B/A Methodist Hospital Cafeteria and Food Service v. Wilda Wisdom

NO. 07-01-0050-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D JANUARY 4, 2002 ______________________________ ARAMARK HEALTHCARE SUPPORT SERVICES, INC., d/b/a METHODIST HOSPITAL CAFETERIA AND FOOD SERVICE, APPELLANT V. WILDA WISDOM, APPELLEE _________________________________ FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY; NO. 98-501,815; HONORABLE BLAIR CHERRY, JUDGE _______________________________ Before BOYD, C.J., and QUINN and REAVIS, JJ. Appellant Aramark Healthcare Support Services, Inc., d/b/a Methodist Hospital Cafeteria and Food Service Inc. (Aramark) appeals a judgment following a jury trial that appellee Wilda Wisdom recover $198,634.37 from Aramark as her damages following a slip and fall accident on the premises of Aramark. By six issues, Aramark contends that (1) the trial court abused its discretion in allowing a nurse to give expert testimony that the medical expenses incurred were reasonable, (2) the trial court abused its discretion in allowing a nurse to give expert testimony that the medical expenses were necessarily incurred as a result of the occurrence, (3) the evidence was insufficient to support the jury's finding that the medical treatment given and the expenses incurred were necessary as a result of the occurrence, (4) the evidence was insufficient to support the jury's findings that the condition of the premises posed an unreasonable risk of harm, (5) the evidence was insufficient to support the jury's finding that Aramark knew or should have known of the condition, (6) the trial court abused its discretion in denying the motion to remit damages because Wisdom's pleadings do not support the jury's award of damages. Based upon the rationale expressed herein, we reverse and remand in part and affirm in part. On March 11, 1997, Wisdom sustained injuries when she fell in a cafeteria operated by Aramark while visiting her husband at Methodist Hospital. In addition to housing a cafeteria, the facility also includes other food service facilities, i.e. Burger King, Chick Fil-A, pizza, and a salad bar. When she entered the food service area, Wisdom walked through the area to survey the choices of food. After walking twice by the food service outlets and a cardboard advertisement sign (1) near the salad bar, Wisdom selected an entree. As she was walking to the checkout counter at the opposite end of the cafeteria area, she tripped on the cardboard sign that had fallen on the floor near the salad bar. Wisdom suffered injuries to her elbow and back causing her to incur medical expenses in excess of $100,000 and to miss almost a year of work. By its first issue, Aramark contends that the trial court abused its discretion in allowing a nurse to give expert testimony that the medical expenses incurred were reasonable, and by its second issue, it contends that the trial court abused its discretion in allowing a nurse to give expert testimony that the medical expenses were necessarily incurred as a result of the occurrence in question. In order to preserve a complaint for appellate review, a party must distinctly specify an objection to the trial court. Tex. R. Evid. 103(a)(1); Tex. R. App. P. 33.1(a); St. Paul Surplus Lines Ins. Co. v. Dal-Worth Tank Co., 917 S.W.2d 29, 45 (Tex.App.--Amarillo 1995, aff'd in part and rev'd in part, 974 S.W.2d 51 (Tex. 1998)). The purpose of an objection is two-fold: (1) to notify the trial judge and the other party of the complaint; and (2) to preserve the complaint for appellate review. See Wilkerson v. Pic Realty Corp., 590 S.W.2d 780, 782 (Tex.Civ.App.--Houston [14th Dist.] 1979, no writ). Because Aramark's brief does not provide a reference to the record where it presented its objection to the trial court as required by Texas Rules of Appellate Procedure 38.1(f) and (h), we will examine the portion of the record which contains the testimony of Nurse Wintroath, according to the reference provided by counsel during oral argument. Q. (By Mr. Simpson). I want to show you what has been marked as Plaintiff's Exhibit Number 1 and ask you if you recognize that. A. I do. Q. And would you tell the ladies and gentlemen of the jury what that is? A. This is a list of or a summary of bills that have been accrued by Ms. Wisdom since her injury and-bills. Q. All right. And the charges that are reflected there, did you see bills that match up with those charges? * * * Mr. Whiteside: Well, I don't think she-I don't think a nurse practitioner or a case manager is qualified to render a medical decision. She can testify, perhaps, as to the reasonableness of the bills, but can't testify to whether or not the bills were made necessary or are necessary, as a result of the treatment, to treat the particular condition in question, because she is not a medical doctor. * * * Q. (By Mr. Simpson:) Ms. Wintroath, do you have an opinion as to whether or not the charges that are reflected there are reasonable charges for the Lubbock area? A. Yes, they are. Mr. Simpson: Your Honor, we will offer this exhibit later when Ms. Wisdom testifies. We will lay the rest of the foundation. That is all we have of this witness. * * * Cross Examination * * * Q. But that is all you are saying. You are not saying these charges were made necessary as a result of this accident? A. No, I am not saying that. * * * Q. . . .You are just saying he is going to bill for whatever he did? A. Yes. I am saying that the charges that I reviewed were reasonable charges for the procedures that were done. Q. Okay. That is fair enough. According to the above record, Aramark did not make any objection to the testimony of the nurse that the charges for the medical procedures were reasonable. Indeed, it appears that trial counsel agreed that she could testify as to the reasonableness of the medical fees and expenses. Therefore, issue one presents nothing for review. Additionally, regarding issue two, the record also demonstrates that the nurse clarified her testimony and ultimately testified that she was not expressing any opinion as to medical necessity, which prompted Aramark's counsel's response, "[t]hat is fair enough." Therefore issue two presents nothing for review, and accordingly, issues one and two are overruled. By issue three, Aramark contends that the evidence was insufficient to support the jury's finding that the medical treatment given and expenses incurred were necessary as a result of the occurrence. (2) In reviewing a factual insufficiency challenge, we must consider and weigh all the evidence in support of the jury finding and set it aside only if it is so contrary to the overwhelming weight of the evidence as to be manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); Williams v. Gaines, 943 S.W.2d 185, 191 (Tex.App.--Amarillo 1997, writ denied). As an appellate court we cannot retry the case or otherwise substitute our judgment for that of the trier of fact. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998), cert. denied, 525 U.S. 1017, 119 S. Ct. 541. 142 L. Ed.2d 450 (1998); see also Mohnke v. Greenwood, 915 S.W.2d 585, 589 (Tex.App.-Houston [14th Dist.] 1996, no writ). In our review, we must first consider, weigh, and examine all of the evidence which supports and which is contrary to the jury's determination. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). Because Aramark did not call any witnesses during the trial and did not introduce any evidence that the medical treatment given and the expenses incurred were not necessary as a result of the occurrence, the jury was not required to weigh conflicting evidence. Evidence supporting the jury verdict comes from several sources. First, during his examination of Nurse Wintroath, counsel for Wisdom told the judge that he would offer exhibit one, which the nurse referenced in her testimony, during the examination of Wisdom. At the conclusion of Wisdom's testimony, the record shows the following: Mr. Simpson: . . . At this time, Your Honor, after the testimony of Ms. Wintroath, Ms. Wisdom, and Dr. Johnson, we would offer Plaintiff's Exhibit Number 1 into evidence, which is our bills. * * * Mr. Whiteside: My concern has been, for example, Judge, that Dr. Naga Bushan, M.D., is listed, that he treated her from 2/3/98 to 7/6 of 2000 for $6,043, and we haven't heard anything about Dr. Bushan. And I have got - I got - I guess, if you could just give me some time on this . . . . In other words, I don't think I have heard any testimony about the relationship between anything Dr. Bushan did and this injury. . . . Could we have some time to resolve this? * * * The Court: Is there any place-evidence with regard to Dr. Bushan? Mr. Simpson: We will clean that up. If it is not related, we will take it out. The Court: All right. Subject to that, we will admit it, but I think, perhaps, maybe the first thing in the morning, we can do that. Mr. Simpson: And one other thing, Your Honor, I would like to offer into evidence Plaintiff's Exhibit Number 7, which is the letter that Dr. Johnson wrote to us. I think I am on 7. The Court: Yes. Mr. Whiteside: No objection. The Court: It will be admitted. Then, when trial commenced the next morning, the record shows that exhibit one, as modified was admitted into evidence. Mr. Simpson: Also, with regard to Dr. Bushan's bills that were in question, we took those out of our index. The Court: All right. And that solves Mr. Whiteside's objection? Mr. Whiteside: Yes, sir. Plaintiff's exhibit one, as modified to satisfy counsel's objection, was a list of hospital and physicians' services and charges for services rendered to Wisdom, totaling $112,523.11. Wintroath testified about the reasonableness of the fees and charges. By his letter of December 6, 1999, which was admitted into evidence without objection, Dr. Johnson expressed his opinion that, after reviewing his chart, the fall of March 11 was a direct cause of the injuries which prompted Wisdom's surgeries. Moreover, Dr. Johnson, testifying by deposition, stated that the surgeries by Dr. George and Dr. Gill were a direct result and were necessary. Considering the summary of the medical services and expenses described in exhibit one along with Dr. Johnson's letter and testimony, we conclude that the jury's finding is not so contrary to the overwhelming weight of the evidence as to be manifestly unjust. Issue three is overruled. By its fourth and fifth issues, Aramark contends that the evidence was insufficient to support the jury's finding that the condition of the premises posed an unreasonable risk of harm and that it knew or should have known of the condition. We disagree. By its arguments Aramark contends that there is no evidence to support the jury findings on these two issues. However, because Aramark adopts the factual sufficiency standard of review set out in its third issue, we will not consider the issues as a challenge to the legal sufficiency. The evidence on these issues is not conflicting because Aramark did not introduce any evidence that the condition of the premises did not pose an unreasonable risk of harm or that Aramark did not know or should not have known of the condition of the premises. The sign was introduced into evidence and described as a man-sized character, which was free-standing and not affixed to a wall or otherwise secured to prevent it from being knocked over by visitors to the cafeteria. Joann Gonzales, a cashier at the cafeteria, testified that the sign had been knocked over before the incident and that the fallen sign would be dangerous to someone carrying a tray. She also testified that before Wisdom fell, she called over the intercom for someone to come and pick up the sign but Wisdom fell before it was moved. Although uncertain, Gonzales had a vague recollection that Wisdom may have brushed the sign while making her food selection causing the sign to fall. However, according to her testimony, Wisdom stated that she did not knock the sign over and did not see it on the floor. Ida Johnson, the manager of the cafeteria, went to the scene of the accident. She testified that it appeared that someone had tripped over the sign and that if it was on the floor in the traffic pattern, the sign would represent a danger to the customers in the cafeteria. There being no evidence to the contrary, we conclude that the evidence is not so contrary to the overwhelming weight of the evidence as to be manifestly unjust. Issues four and five are overruled. By their sixth issue, Aramark contends that the trial court abused its discretion in denying the motion to remit damages because Wisdom's pleadings do not support the amount of the jury award. We agree. Generally, a judgment for damages in excess of the amount sought by the pleadings is error. See Tex. R. Civ. P. 301; Employers Ins. of Wausau v. Schaefer, 662 S.W.2d 414, 419 (Tex.App.--Corpus Christi 1983, no writ). Wisdom's live pleadings requested only $105,000 in past medical expenses, but the jury awarded $112,523.11. Accordingly, the trial court should not have rendered judgment for an amount in excess of what Wisdom requested in her trial pleadings. Picon Transp.,Inc. v. Pomerantz, 814 S.W.2d 489, 491 (Tex.App.-Dallas 1991, writ denied). The judgment for past medical expenses in excess of the $105,000 sought by Wisdom is erroneous, and the trial court erred in denying Aramark's motion for remittitur. Aramark's sixth issue is sustained. Accordingly, we reverse that portion of the judgment awarding Wisdom recovery for past medical and hospital care in excess of $105,000, and the cause is remanded to the trial court for recomputation of the total award, including prejudgment and postjudgment interest; in all other respects, the judgment is affirmed. Don H. Reavis Justice Do not publish. 1. The sign was a full size replica of a Star Wars character advertising the Star Wars Trilogy and Lays Potato Chips held up by a wing, perpendicular to image, running along the back side almost the entire length and protruding out several inches from the flat surface. 2. By its argument, Aramark only challenges the factual sufficiency of the evidence. ly sufficient to support Appellant’s conviction; and (5) whether trial counsel rendered ineffective assistance in failing to subpoena Harold Williams (“Johnny”). Potential Issues I. Prosecutor’s comments during voir dire on a defendant’s failure to testify During voir dire, the prosecutor commented: I guess the basis of the question is, is there a way that I can get to that level in a case proving to you all of the elements if you never hear from the Defense? Or do you say, gosh, I’ve got to hear from him. I want to know his side? * * * why wouldn’t somebody want to take the stand and talk about their case? At that moment, defense counsel objected based on the United States Constitution and the prosecutor was asked to rephrase. He continued: [w]hy would somebody choose to exercise their right? You understand it’s not a definite prohibition. We don’t say you can’t take the stand. We say you have the right to exercise. You can say, I don’t want to take the stand. Right? Defense counsel again objected, and the trial court overruled the objection. A prosecutor’s comment that refers to an accused’s failure to testify violates the accused’s Fifth Amendment right against self-incrimination. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Bustamante v. State, 48 S.W.3d 761, 765 (Tex.Crim.App. 2001). However, to violate that right, the offending language must be viewed from the jury’s standpoint and the implication that the comment referred to the defendant’s failure to testify must be clear. Bustamante, 48 S.W.3d at 764. It is not sufficient that the language might be construed as an implied or indirect allusion. Id. The test is whether the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant’s failure to testify. Id. Comments such as those from the prosecutor in the instant case, which occur prior to testimony in the case being closed, cannot be held to refer to a failure to testify which has not yet occurred. See Reynolds v. State, 744 S.W.2d 156, 160 (Tex.App.–Amarillo 1987) (citing McCarron v. State, 605 S.W.2d 589, 595 (Tex.Crim.App. 1980)). Because the comments by the prosecutor were made during voir dire, he could not have known whether Appellant was going to testify. See McCary v. State, 477 S.W.2d 624, 627 (Tex.Crim.App. 1972). We agree with counsel’s assessment of this issue. II. Appellant’s DNA sample was properly seized and admitted into evidence While Appellant was in jail, samples of his DNA were seized pursuant to a search warrant for “personal property.” Trial counsel filed a motion to quash alleging that fluids, saliva, and blood are not “personal property” that may properly be seized pursuant to chapter 18 of the Texas Code of Criminal Procedure. Article 18.02 of the Code authorizes a search warrant for “property” and also for “items.” See id. at (1) and (10). Although it may have been more appropriate to describe the fluids as “items,” the statute authorizes seizure of either as evidence. The search warrant’s reference to Appellant’s fluids as “property” rather than “items” did not affect the adequacy of the description or otherwise render the warrant invalid. See Falco v. State, No. 03-08-00206-CR, 2009 WL 349141, at *3 (Tex.App.–Austin Feb. 11, 2009, no pet. h.). We agree with counsel that the seizure of Appellant’s fluids pursuant to a valid search warrant presents no reversible error. III. State’s Exhibit 6 was properly admitted State’s Exhibit 6 contains, among other medical records of the victim, the SANE’s records of the victim’s forensic examination. The custodian of the medical records executed an affidavit authenticating the records, but she did not testify. Appellant objected during SANE Livermore’s testimony to admission of the exhibit because it contained medical records that were not part of the SANE examination and the proper predicate had not been laid. The documents were not filed with the trial court clerk although counsel acknowledged he had reviewed them pursuant to the State’s open file policy. When questioned by trial counsel on voir dire, Livermore acknowledged she was the custodian of that portion of the medical records relating to the SANE examination but not the custodian of the remaining medical records. The predicate for the business records exception to the hearsay rule may be established either by the custodian of the records or another qualified witness. (Emphasis added). Tex. R. Evid. 803(6). See Williams v. State, 176 S.W.3d 476, 484 (Tex.App.–Houston 2004, no pet.). The rule does not require that the witness be the person who made the record. We agree with counsel that the trial court did not abuse its discretion in admitting all the medical records contained in State’s Exhibit 6 pursuant to the business records exception. IV. Legal and factual sufficiency of the evidence Evidence is legally insufficient if, when viewed in a light most favorable to the prosecution, a rational trier of fact could not have found each element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Laster v. State, No. PD-1276-07, 2009 WL 80226, at *2 (Tex.Crim.App. 2009). In conducting our factual sufficiency review, we must defer to the jury’s findings and we cannot conclude that the conviction is factually insufficient simply because we might disagree with the jury’s verdict. See Laster, 2009 WL 80226, at *2; See also Watson v. State, 204 S.W.3d 404, 416-17 (Tex.Crim.App. 2006). As charged, the State was required to prove that Appellant intentionally and knowingly sexually assaulted the victim by causing penetration of the victim’s anus with his sexual organ without her consent. Tex. Penal Code Ann. § 22.011(a)(1)(A). Captain and Wipkey both testified that they witnessed Appellant having sex with the victim while she was unconscious and “lifeless.” Wipkey testified that she observed Daily’s child sleeping at the top of the bed while the victim was laying toward the bottom of the bed with Appellant standing up and holding her legs up. Captain testified there was “no doubt” about what he saw and also described Appellant having sex with the victim while propping her legs up in the air. There was also testimony that the victim had not shown Appellant any affection that evening. The victim testified that she had no relationship with Appellant and she did not consent to having sex with him. Additionally, the rectal swab from the rape exam confirmed that Appellant was a contributor of DNA. The only witness to testify for the defense during guilt/innocence was Appellant’s girlfriend with whom she shared a child. According to her testimony, at approximately 3:30 or 4:00 a.m., she drove to Daily’s house to pick up Appellant and his friends. When she arrived, they were sitting on the front porch drinking with Captain. She did not enter the house and did not see Appellant enter either. She denied calling Daily several days later to ask her to convince the victim to drop the charges and claimed she did not become aware of the charges until months later. During closing arguments, trial counsel theorized that Captain was the perpetrator and that after he assaulted the victim, she became immobile and he and his friends “panicked” and called the police. Based on the standards of review, however, we agree with counsel that the evidence is legally and factually sufficient to support Appellant’s conviction. V. Ineffective assistance of counsel Harold Williams (“Johnny”), one of Appellant’s friends who was at Daily’s house during the incident, was not subpoenaed to testify. This, Appellant urges, denied him the right to effective assistance of counsel. We review a claim of ineffective assistance of counsel under the standard set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Ex parte Ellis, 233 S.W.3d 324, 330 (Tex.Crim.App. 2007). Although a motion for new trial was filed, ineffective assistance of counsel was not alleged and no hearing was held on the motion. Where the alleged dereliction is an error of omission de hors the record rather than commission revealed in the trial record, collateral attack may be the vehicle by which to develop a detailed record of the alleged ineffectiveness. See Freeman v. State, 125 S.W.3d 505, 506-07 (Tex.Crim.App. 2003). Initially, we note that trial counsel zealously represented Appellant. From voir dire through the punishment phase, counsel made numerous, detailed objections and also conducted vigorous cross-examination of the State’s witnesses. There is nothing in the record to demonstrate what Williams’s testimony would have been or how it would have benefitted Appellant. We will not speculate as to trial counsel’s strategy in the face of a silent record. See Stultz v. State, 23 S.W.2d 198, 208 (Tex.App.–Houston [14th Dist.] 2000, pet. ref’d). Given the totality of the representation by trial counsel rather than an isolated act of omission, we agree with appellate counsel that a claim of ineffective assistance of counsel has no merit. We have independently examined the entire record to determine whether there are any non-frivolous issues which might support the appeal. See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); In re Schulman, 252 S.W.3d at 409; Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We have found no such issues. See Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969). After reviewing the record and counsel’s brief, we agree with counsel that there are no plausible grounds for appeal. See also Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005). Accordingly, counsel's motion to withdraw is granted and the trial court’s judgment is affirmed. Per Curiam Do not publish.