991 S.W.2d 518 (Tex.App. - Beaumont 1999), 09-97-361, Wal-Mart Stores, Inc. v. Ard

Docket Nº09-97-361CV.
Citation991 S.W.2d 518
Party NameWAL-MART STORES, INC., Appellant, v. Ruby ARD and J.C. Ard, Appellees.
Case DateJune 10, 1999
CourtCourt of Appeals of Texas

Page 518

991 S.W.2d 518 (Tex.App. —Beaumont 1999)



Ruby ARD and J.C. Ard, Appellees.

No. 09-97-361CV.

Court of Appeals of Texas, Ninth District, Beaumont

June 10, 1999

Submitted April 15, 1999.

Page 519

J. Preston Wrotenbery, Magenheim, Bateman, Robinson, Wrotenbery & Helfand, PLLC, Houston, for appellant.

Ray Hensarling, Walter Umphrey, Joe Fisher, II, Provost & Umphrey Law Firm, LLP, Beaumont, for appellee.




This appeal arises from a premises liability cause of action filed by Ruby and J.C. Ard against Wal-Mart Stores, Inc. Ruby was injured when a portable basketball goal at the Wal-Mart Store in Woodville, Texas, fell over, striking her in the head, neck and shoulder area. The jury awarded Ruby $150,000 in damages and awarded J.C. $15,000 in damages. Wal-Mart appeals raising three issues.

In its first issue, Wal-Mart contends there is no evidence, or alternatively insufficient evidence, to support an award of loss of earning capacity. Within this issue Wal-Mart makes several arguments. First, there is no evidence of loss of earning capacity in the past. Second, the evidence is factually insufficient to support an award for loss of earning capacity in the future. Third, because there is no evidence, loss of earning capacity as an element of damages should not have been submitted to the jury.

Regarding the sufficiency of the evidence to support the jury's award, the question submitted to the jury asked for separate amounts for damages sustained in the past and damages that will be sustained in the future, but called for a total damage amount as to all of the elements of damage rather than for a specific amount

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as to each element. The elements listed entailed not only loss of earning capacity but also physical pain and mental anguish, physical impairment, and medical care. We first decide whether an evidentiary review of a single element is appropriate when damages were not segregated.

As the court recognized in Greater Houston Transp. Co., Inc. v. Zrubeck, 850 S.W.2d 579 (Tex.App.--Corpus Christi 1993, writ denied),

... [W]hen a damages issue is submitted in broad-form, an appellate court cannot ascertain with certainty what amount of the damages award is attributable to each element. Furthermore, when the elements of actual damages considered by the jury include the more amorphous, discretionary damages, e.g., mental anguish, pain and suffering, physical impairment and disfigurement, any amount awarded above the more definitive damages, such as past medical expenses and lost wages, will be shunted to the discretionary domain of the jury. Thus, under the current practice, a meaningful review on appeal of damages questions submitted in broad-form is extremely difficult.

The only way that a defendant can successfully attack a multi-element damages award on appeal is to address each and every element and show that not a single element is supported by sufficient evidence. If there is just one element that is supported by the evidence, the damages award will be affirmed if it is supported by the evidence.

Id. at 589 (citations omitted) (footnote omitted). The Zrubeck court held Greater Houston had "waived any complaint concerning the sufficiency of the evidence regarding actual damages by failing to request findings on each element of damages, and by failing to address all of the elements of damage in its argument." Id. The Zrubeck court then determined whether the aggregate evidence supporting the elements in the question was sufficient to support the jury's assessment of damages. Id. at 589-90.

The approach taken by the court in Zrubeck has been adopted by many other courts of appeal, including this one. See Cal-Tex. Lumber Co., Inc. v. Owens Handle Co., Inc., 989 S.W.2d 802, 814-15 (Tex.App.--Tyler 1999, n.p.h.); Goodman v. Page, 984 S.W.2d 299, 304 (Tex.App.--Fort Worth 1998, n.p.h.); City of Port Isabel v. Shiba, 976 S.W.2d 856, 858-59 (Tex.App.--Corpus Christi 1998, pet. denied); City of Beaumont v. Gallien, 949 S.W.2d 57 (Tex.App.--Beaumont 1997) (not designated for publication). 1 Price v. Short, 931 S.W.2d 677, 688 (Tex.App.--Dallas 1996, no writ); Pitman v. Lightfoot, 937 S.W.2d 496, 524-25 (Tex.App.--San Antonio 1996, writ denied); and Haryanto v. Saeed, 860 S.W.2d 913, 921-22 (Tex.App.--Houston [14th Dist.] 1993, writ denied).

In Cal-Tex, the court noted Cal-Tex did not object to the court's broad form submission on the damages issue. Cal-Tex., 989 S.W.2d at 815-16. The court found that with the exception of Cal-Tex's complaint that the element of lost profits was as a matter of law too speculative to have been submitted to the jury, Cal-Tex had waived its legal sufficiency complaints as to specific elements of damages. Id. The court determined that as a consequence, except for lost profits, it was limited to a factual sufficiency review of damages. Id.

The Corpus Christi Court of Appeals recently reaffirmed Zrubeck in City of Port Isabel, 976 S.W.2d at 858-59. The court noted that the City contested some components of the damages award, but did not attack "each and every element." Id. Because other damages, not challenged by the City, were supported by the evidence the court affirmed the jury's determination of damages. Id. 2

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Likewise, in Pitman, the court determined appellants had failed to challenge all of the elements of damages. Pitman, 937 S.W.2d at 524-25. The Pitman court noted that if at least one element of damages was supported by legally and factually sufficient evidence, appellants would lose their sufficiency challenge. Id.

In contrast, in Goodman, the appellants did "address each and every element" in challenging the multi-element damages award. Goodman, 984 S.W.2d at 304-06 (quoting Zrubeck, 850 S.W.2d at 589). Accordingly, the Goodman court considered the factual and legal sufficiency of the evidence to support each element and affirmed the damages award. Id. at 305-07.

In Price, the court found that because Price failed to address all the elements of damages, he waived his challenge to the sufficiency of the evidence, and concluded that if Price had preserved his complaint, the court would have held that the damages award was supported by sufficient evidence. Price, 931 S.W.2d at 688. However, the court went on to address the merits of Price's complaint, conducted a review of the sufficiency of the evidence, and concluded that if Price had preserved his complaint, the court would have held that the damages award was supported by sufficient evidence. Id. at 688-89.

In Haryanto, the court noted that appellant failed to request findings on each element of damages or to address all elements of damages in its argument and, therefore, failed to preserve error. Haryanto, 860 S.W.2d at 922. The court then went on to review the "aggregate evidence" and concluded it supported the award of actual damages. Id. at 923.

This court, in an unpublished portion of Gallien, did not consider the sufficiency of the evidence to support each separate element where the question contained five elements of damages but asked for only one amount for the past and one amount for the future. Gallien, No. 09-96-169 CV at 15-18. We noted that the City did not complain about the manner in which the question was submitted and did not submit any proposed question. Id. at 16. This court looked at the evidence as a whole and determined there was ample evidence supporting the award of damages. Id. at 17.

Considering the above authorities, we conclude we are unable to conduct an evidentiary review as to an individual element of damages where the jury question called for a total amount as to all elements of damages. See Wal-Mart Stores, Inc. v. Garcia, 974 S.W.2d 83, 85-87 (Tex.App.--San Antonio 1998, no pet.). The Supreme Court of Texas reached the same conclusion in the recent case of Thomas v. Oldham, 895 S.W.2d 352 (Tex.1995). In that case, the trial court submitted a broad form damage question with five separate elements of damages but asking for just one total amount. Id. at 359. The court rejected the City's no evidence challenge to certain elements of the verdict, noting the City did not argue the evidence favorable to the verdict, considered as a whole, was legally insufficient. Id. at 359-60.

Wal-Mart cites Texas Indus., Inc. v. Vaughan, 919 S.W.2d 798 (Tex.App.--Houston [14th Dist.] 1996, writ denied), for the proposition that "[w]hen damages are not segregated, the case must be remanded on all damages if there is reason to remand on one element of damages because of legally or factually insufficient evidence to support that particular element." In Vaughan, the element in question was mental anguish. We first note that in Vaughan mental anguish was not pleaded by the plaintiff. Id. at 803. At the jury charge conference prior to submission of the charge, the defendant specifically objected to the inclusion of that

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element--thus the issue was not tried by consent. Id. The court of appeals found the defendant did not invite the error and then noted the evidence was factually insufficient to support damages for mental anguish. Id. at 804. The court of appeals then stated that "[b]ecause the trial court failed to segregate damages, the case must be remanded on all damages if we find reason to remand on one element of damages." Id. (citing Worsham Steel v. Arias, 831 S.W.2d 81, 87-88 (Tex.App.--El Paso 1992, no writ). However, the court noted that because damages were not segregated, "it is possible that the jury did not award Vaughan any money for mental anguish." Id. at 804 n. 2.

Worsham Steel, the case Vaughan relies on as authority, found that "[b]ecause the trial court's charge failed to divide the damages issue, it is impossible to segregate the corresponding amount of damages to any of the respective...

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