Mario Ontiveroas v. John Lozano and Samuel Medrano

Affirmed and Memorandum Opinion filed April 27, 2006 Affirmed and Memorandum Opinion filed April 27, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-05-00294-CV ____________ MARIO ONTIVEROAS, Appellant V. JOHN LOZANO AND SAMUEL MEDRANO, Appellees On Appeal from the 189th District Court Harris County, Texas Trial Court Cause No. 2003-47430 M E M O R A N D U M   O P I N I O N This appeal arises from a car accident involving Mario Ontiveroas, Samuel Medrano, and Medrano=s passenger, John Lozano. Ontiveroas stipulated to liability and the trial proceeded to determine the amount of damages sustained by Medrano and Lozano (Aappellees@). In this appeal, Ontiveroas argues (1) the evidence was factually and legally insufficient to submit mental anguish and physical impairment as elements of appellees= damages to the jury, (2) the judgment is defective because erroneous damage elements were submitted in broad form to the jury and cannot be distinguished from factors allowing an appropriate award, and (3) the trial court erred by admitting the police report into evidence. We affirm. At 11:30 p.m. on April 14, 2003, appellees were driving on the Interstate 45 feeder road when Ontiveroas ran a red light at Woodridge and hit their vehicle. The impact caused appellees= vehicle to spin around, hit another car, and land on the sidewalk. Onlookers helped appellees from the car, and the two men were taken by ambulance to the hospital. Ontiveroas stipulated to liability and a jury trial was held to determine damages. At the close of trial, the jury received two identical broad-form jury questionsCone each for Medrano and LozanoCasking what sum of money, if any, would compensate each man for his injuries resulting from the accident. The jury was instructed to consider only the following elements: a. Physical pain and mental anguish in the past. b. Reasonable and necessary medical expenses incurred in the past. c. Physical impairment sustained in the past. Ontiveroas objected to the mental anguish and physical impairment elements of each question without stating the grounds for his objection. The court overruled his objection and instructed the jury to consider the above elements separately, without commingling damages found for one element in any other element. The jury awarded $9,300 to Lozano and $25,000 to Medrano. I. Evidentiary Arguments In his first and second issues, Ontiveroas contends the evidence is legally and factually insufficient to support the damage elements of mental anguish and physical impairment. Ontiveroas timely filed a motion for new trial alleging there was no evidence authorizing the submission of mental anguish and physical impairment damage elements to the jury.[1] The motion for new trial, however, contained no challenge to the factual sufficiency of the evidence of either damage element. Because Ontiveroas did not properly raise his factual sufficiency challenge to the trial court, he has waived that complaint for our review. Tex. R. Civ. P. 324(b)(2). We overrule Ontiveroas= first and second issues pertaining to factual sufficiency. Ontiveroas also argues the evidence was legally insufficient to submit the mental anguish and physical impairment damage elements to the jury. A trial court shall submit questions to the jury that are raised by the written pleadings and the evidence. Tex. R. Civ. P. 278. We review jury charge error for an abuse of discretion. Tex. Dep=t of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990). A court abuses its discretion in connection with the charge and commits reversible error if the error probably caused the rendition of an improper judgment. Tex. R. App. P. 44.1(a)(1); KPH Consol., Inc. v. Romero, 102 S.W.3d 135, 156 (Tex. App.CHouston [14th Dist.] 2003), aff=d, 166 S.W.3d 212 (Tex. 2005). A. Mental Anguish A damage award for mental anguish will survive a legal sufficiency challenge when there is direct evidence of the nature, duration, and severity of the mental anguish, thus establishing a substantial disruption in the plaintiffs= daily routine. Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995). When such evidence is lacking, we apply traditional no-evidence standards to determine whether there is any evidence of a Ahigh degree of mental pain and distress@ that is Amore than mere worry, anxiety, vexation, embarrassment, or anger@ to support an award of mental anguish. Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996) (quoting Woodruff, 901 S.W.2d at 444). There must also be some evidence to justify the amount awarded. Id. Juries must find an amount that fairly and reasonably compensates for the loss. Id. Appellees argue the test for determining whether there is legally sufficient evidence of mental anguish as set out by the Texas Supreme Court in Woodruff and Saenz does not apply in personal injury cases. Instead, they contend Ait has long been the law of this state that . . . mental anguish is presumed in the case of bodily injuries.@ Appellees cite to several cases to support their argument.[2] Mental anguish damages may be recovered in virtually all physical injury actions. Krishnan v. Sepulveda, 916 S.W.2d 478, 481 (Tex. 1995). In each of the cases cited by appellees, however, compensable mental sufferingCthat is, that causing a substantial disruption in daily routine or a high degree of mental pain and distressCcould be readily implied as a natural consequence of severe physical injury or death. There are a number of cases that indicate mental anguish may be inferred upon a showing of serious bodily injury.[3] We do not agree that a jury may automatically infer mental anguish once any physical injury is sustained. There must, instead, be specific evidence upon which an award for mental anguish may be upheld. Accordingly, we will apply the Texas Supreme Court=s test as set out in Woodruff and Saenz to determine whether the evidence authorizes a finding of mental anguish in personal injury cases.[4] See Jackson v. Gutierrez, 77 S.W.3d 898, 903 (Tex. App.CHouston [14th Dist.] 2002, no pet.) (reversing mental anguish award when the only evidence of such was a conclusory, affirmative response to a question of whether mental anguish was suffered; this reply was no evidence of the nature, severity, duration or degree of mental pain and distress suffered).[5] Applying the Woodruff-Saenz test, we find appellees offered at least some evidence they both suffered mental anguish as a result of their injuries. Immediately after the accident, Medrano feared he might never be able to walk without a limp or play basketball. Both men feared they would never return to their pre-accident physical abilities, and they each experienced pain for at least a month after the accident, including back, shoulder, and side pain that necessitated treatment from a chiropractor. At trial neither plaintiff believed he had recovered Aa hundred percent@ since the accident. Appellees also testified they both feared for their lives either immediately before or during the accident. The severity of the collisionCwhich shattered the glass in the vehicle, spun it around, caused it to hit another car and land on a sidewalk, and left Medrano unable to exit from the driver-side doorCsupports this testimony. Fear of imminent death or serious injury, even for a matter of seconds, provides some evidence of mental anguish that is more than mere worry, anxiety, vexation or anger. See Lee Lewis Constr., Inc. v. Harrison, 64 S.W.3d 1, 15B16 (Tex. App.CAmarillo 1999), aff=d, 70 S.W.3d 778 (Tex. 2001) (finding some evidence supported decedent=s mental anguish during two-to-four-second fall from tenth floor of construction site although evidence was factually insufficient to support recovery of $500,000); Port Terminal R.R. Ass=n v. Sweet, 640 S.W.2d 362, 366B67 (Tex. App.CWaco 1982), aff=d, 653 S.W.2d 291 (Tex. 1983) (finding jury could reasonably infer decedent suffered mental anguish caused by a terrifying realization that he might be hit by a train after being thrown onto the tracks). In City of Tyler v. Likes, the Texas Supreme Court stated A[a] person who is placed in peril by the negligence of another, but who escapes without injury, may not recover damages simply because he has been placed in a perilous position. Nor is mere fright the subject of damages.@ 962 S.W.2d 489, 500 (Tex. 1997) (quoting Gulf, C. & S. F. Ry. Co. v. Trott, 86 Tex. 412, 25 S.W. 419, 420 (Tex. 1894)). However, here appellees introduced evidence of their physical injuries resulting from the collision. Further, they presented some evidence they sustained a high degree of mental pain or distress as a result of their physical injuries.[6] Accordingly, we hold the trial court did not abuse its discretion in failing to exclude mental anguish as an element of damages. We overrule Ontiveroas= first issue. B. Physical Impairment To submit past physical impairment as an element of damages, appellees must establish, by more than a scintilla of evidence, that they incurred injuries distinct from, or that extended beyond, injuries compensable merely as pain and suffering, loss of earning capacity, or other damage elements. Patlyek v. Brittain, 149 S.W.3d 781, 786 (Tex. App.CAustin 2004, pet. denied). They must also show these distinct injuries had a Asubstantial@ effect. Id. Medrano testified he (1) had trouble sleeping, (2) cannot lift weights as he occasionally did before the accident (he now does push-ups instead), (3) could not play basketball for one month after the accident, and (4) could barely walk during that time. Lozano testified he (1) had difficulty sleeping, (2) could not help his grandparents with chores such as cutting the grass, and (3) took longer getting out of bed or walking up a flight of stairs. This testimony is some evidence of physical impairment as to both appellees. See id. at 788 (finding inability to turn head to the left constitutes some evidence of physical impairment). We overrule Ontiveroas= second issue. II. Police Report In his third issue, Ontiveroas argues the trial court erred by allowing the police report into evidence in its entirety because it included opinions the police officer was not qualified to render. Specifically, Ontiveroas contends the officer=s description of the accident as Amajor-truck-auto-auto@ and the officer=s notation that both appellees sustained Apossible@ injuries provided the jury with untrustworthy evidence that tainted their decision. We review a trial court=s decision to admit or exclude evidence for an abuse of discretion. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000). We will not reverse the trial court=s judgment unless an erroneous evidentiary ruling probably caused the rendition of an improper judgment. Santos v. Comm=n for Lawyer Discipline, 140 S.W.3d 397, 401 (Tex. App.CHouston [14th Dist.] 2004, no pet.). We review the entire record to determine whether the exclusion or admission of evidence probably resulted in the rendition of an improper judgment. Id. If there is any legitimate basis to support the trial court=s evidentiary ruling, we must uphold the trial court=s ruling. Id. Ontiveroas points this Court to the dissenting opinion in McRae v. Echols to support his argument. 8 S.W.3d 797 (Tex. App.CWaco 2000, pet. denied). In McRae, a police report was admitted into evidence as an official record. Id. at 802. Although he was designated as an expert witness, the officer did not testify. Id. The defendant objected to the report, claiming it contained hearsay and improperly predicated expert opinions. Id. at 799. The majority concluded the report was admissible even though it contained opinions about the accident=s cause because the officer=s conclusions were based on a factual investigation, and were trustworthy under Texas Rule of Evidence 803(8). Id. at 800. The dissent argued that admissibility under the hearsay rule does not excuse inadmissibility under the A700 series@ rules of evidence. Id. at 801 (Gray, J., dissenting). The officer=s report in this case is distinguishable from that in McRae. The opinions contained in this report do not concern accident reconstruction and do not touch on causation or liability, both of which Ontiveroas stipulated to at trial. Here, the officer was present at the scene of the accident. He interviewed witnesses, observed the condition of both vehicles, and saw that appellees were being taken to the hospital by ambulance. By describing the accident as Amajor-truck-auto-auto@ and entering code AC@ to indicate Apossible injury@ for both appellees, he merely reported his factual observations. It is clear that not every opinion must be provided by an expert to prove reliable or trustworthy. See Tex. Dept. of Public Safety v. Struve, 79 S.W.3d 796, 803 (Tex. App.CCorpus Christi 2002, pet. denied) (admitting police officer=s report into evidence and stating officer need not be an expert to give opinion about a person=s sobriety when he has observed that person, but stating also that an officer should be qualified as an expert if opinion is based on training and experience). Evidence on causation or accident reconstruction may need an expert=s opinion. See Pilgrim=s Pride Corp. v. Smoak, 134 S.W.3d 880, 892 (Tex. App.CTexarkana 2004, pet. denied) (finding hearsay evidence inadmissible because officer not an expert in accident reconstruction); Ter-Vartanyan v. R & R Freight, Inc., 111 S.W.3d 779, 781B82 (Tex. App.CDallas 2003, pet. denied) (discussing police officer=s qualifications to give opinion about cause of accident). But see McRae, 8 S.W.3d at 800 (finding police officer=s opinions on causation in report were based on factual investigation). Here, the police officer did not need to be qualified as an expert for his Aopinions@ to be admissible.[7] The trial court committed no error by allowing the report into evidence in its entirety. Accordingly, Ontiveroas= third issue is overruled. III. Broad-Form Submission In his fourth issue, Ontiveroas claims a new trial is required because valid and invalid damage elements were commingled in broad-form submission. Harris County v. Smith, 96 S.W.3d 230, 234 (Tex. 2003). Because we find legally sufficient evidence supports each of the challenged damage elements, we find no invalid damage element was included in the broad-form submission. Accordingly, we overrule Ontiveroas= fourth issue. The judgment of the trial court is affirmed. /s/ J. Harvey Hudson Justice Judgment rendered and Memorandum Opinion filed April 27, 2006. Panel consists of Justices Hudson, Fowler, and Seymore. [1] Appellees argue Ontiveroas= failure to state the grounds of his objection at trial waived his legal insufficiency arguments on appeal. Ontiveroas timely filed a motion for new trial containing his legal insufficiency arguments. He has, therefore, preserved these issues for our review. Cecil v. Smith, 804 S.W.2d 509, 510B11 (Tex. 1991). [2] See Moore v. Lillebo, 722 S.W.2d 683, 686 (Tex. 1986) (finding parents= proof of familial relationship is some evidence of mental anguish suffered from wrongful death of their son); Tex. & P. Ry. Co. v. Curry, 64 Tex. 85, 1885 WL 7126, *2 (1885) (stating Ait is contrary to common experience and the laws of man=s existence and nature that any sane, healthy and robust person by physical injuries may be made a cripple for life . . . without mental pain resulting from the changed condition@); Country Roads, Inc. v. Witt, 737 S.W.2d 362, 365 (Tex. App.CHouston [14th Dist.] 1987, no writ) (stating Texas law is well-established that mental anguish may be presumed where it is the natural consequence of the injury, such as when a youth is badly beaten and forcibly ejected from a public club); Malone & Hyde, Inc. v. Hobrecht, 685 S.W.2d 739, 744B45 (Tex. App.CSan Antonio 1985, writ dism=d by agr.) (stating consciousness of approaching death is one element, not the sole element, in evaluating mental suffering and the jury was authorized under the facts to draw a reasonable inference of mental anguish experienced in the last thirty days of decedent=s life); Allen v. Roark, 625 S.W.2d 411, 416B17 (Tex. App.CFort Worth 1981), aff=d in part, rev=d in part on other grounds, 633 S.W.2d 804 (Tex. 1982) (stating Aexistence of physical pain and suffering may be presumed in cases where it is a natural consequence of an injury, such as a fractured skull@); Qualls v. Miller, 414 S.W.2d 746, 748 (Tex. App.CTexarkana 1967, writ dism=d) (stating existence of physical pain and suffering may be presumed when it is a natural consequence of an injury, such as whiplash); English v. Hegi, 337 S.W.2d 860, 863 (Tex. App.CAmarillo 1960, no writ) (stating physical pain and suffering may be presumed when it is the natural consequence of an injury such as a fractured skull received from a motorcycle accident); Austin Road Co. v. Thompson, 275 S.W.2d 521, 526 (Tex. Civ. App. (Tex. App.CFort Worth 1955, writ ref=d n.r.e.) (stating it is proper to imply husband and wife involved in accident suffered physical pain and mental anguish when testimony showed nature of collision, injuries sustained, time spent in the hospital, numerous treatments received from various doctors, amount of sedatives and other medicines used, and the nature of the injuries sustained). [3] See cases cited supra, note 2. See also Verinakis v. Med. Profiles, Inc., 987 S.W.2d 90, 95 (Tex. App.CHouston [14th Dist.] 1998, pet. denied) (explaining Texas authorizes mental anguish damages in virtually all personal injury cases where the defendant=s conduct causes serious bodily injury); Durham Transp., Inc. v. Valero, 897 S.W.2d 404, 417 (Tex. App.CCorpus Christi 1995, writ denied) (stating jury may infer pain and mental anguish from the fact of physical injury without specific testimony thereto when child was hit by a car, suffered a fractured skull, and was hospitalized for four days); Pentes Design, Inc. v. Perez, 840 S.W.2d 75, 80 (Tex. App.CCorpus Christi 1992, writ denied) (stating some evidence supports claim of child=s mental anguish when mother testified child suffered mental anguish and inability to sleep after losing two permanent front teeth); Mo. Pac. R.R. Co. v. Schreck, 774 S.W.2d 687, 690 (Tex. App.CTexarkana 1989, no writ) (holding factfinder may infer mental anguish when painful, serious injuries have occurred); Tex. & N.O.R. Co. v. Cade, 351 S.W.2d 663, 664 (Tex. App.CWaco 1961, writ ref=d n.r.e.) (stating the law infers mental suffering results from severe injuries); Verhalen v. Nash, 330 S.W.2d 676, 681 (Tex. App.CTexarkana 1959, writ ref=d n.r.e.) (holding evidence raised issue of physical pain and mental anguish when child hit by car spent several weeks in hospital, endured painful treatments, needed crutches, limped even though he tried not to, had painful headaches, and did not function like he used to). [4] We are not alone in applying this test to personal injury cases. See, e.g., Sunbridge Healthcare Corp. v. Penny, 160 S.W.3d 230, 251 (Tex. App.CTexarkana 2005, no pet.); Rice Food Mkts., Inc. v. Williams, 47 S.W.3d 734, 738B39 (Tex. App.CHouston [1st Dist.] 2001, pet. denied); Page v. Fulton, 30 S.W.3d 61, 64 (Tex. App.CBeaumont 2000, no pet.); White v. Browning, No. 03‑04‑00273‑CV, 2006 WL 151980, at *6 (Tex. App.CAustin 2006, pet. filed) (not designated for publication). We recognize that our opinion facially conflicts with Kingham Messenger & Delivery Serv.., Inc. v. Daniels, 435 S.W.2d 270, 273 (Tex. Civ. App.CHouston [14th Dist.] 1968, no writ) where we made the naked assertion, AMental suffering will be implied from illness, or injuries, accompanied by physical pain, and it may arise from a sense of discomfort or inconvenience.@ We deem that statement to be obiter dictum. Further, our holding in Kingham is factually distinguishable from the case presented here. In Kingham, appellee experienced pain for two-and-a-half years. This unrelenting pain was sufficient to show some degree of mental suffering despite the court=s inability to determine the seriousness of the injuries. Id. We agree that mental anguish may be implied in some instances from injuries or illness accompanied by physical pain proximately caused by a defendant. See Wal‑Mart Stores, Inc. v. Hoke, No. 14‑99‑00503‑CV, 2001 WL 931658, at *12 (Tex. App.CHouston [14th Dist.] 2001, no pet.) (not designated for publication). However, we do not agree that mental anguish damages will be implied on the showing of any physical injury. [5] While acknowledging the appellee suffered from back, neck and knee pain, the Jackson court did not address whether mental anguish may be inferred from any physical injury. Id. at 903. [6] Saenz also requires some evidence the amount found is fair and reasonable compensation. Saenz, 925 S.W.2d at 614. We have no way to dissect the broad-form jury award to determine what amount, if any, was applied each element, i.e., past physical pain and mental anguish, past reasonable and necessary medical expenses, and past physical impairment. Medrano received a $25,000 total jury award, and Lozano received $9,300. Exhibits at trial showed Medrano incurred over $10,000 in medical expenses, and Lozano incurred approximately $3,000 in medical expenses. Appellant does not challenge the pain or medical expenses damage elements, and he does not allege the evidence as a whole is legally insufficient to support the entire verdict under Thomas v. Oldham. 895 S.W.2d 352, 360 (Tex 1995). Even so, we find per Saenz that some evidence shows the jury awarded fair and reasonable compensation to both appellees. [7] We assume only for the sake of argument that his notations are opinions.