Larrumbide v. Doctors Health Facilities

• Decision Date: 07 May 1987
• Docket Number: No. 05-86-00482-CV,05-86-00482-CV
• Citation: 734 S.W.2d 685
• Parties: Victor M. LARRUMBIDE, and Tillie D. Larrumbide, Individually and on Behalf of the Estate of Julia Ann Larrumbide, Deceased, Appellants, v. DOCTORS HEALTH FACILITIES d/b/a Doctors Hospital, Appellee.
• Court: Texas Court of Appeals

Page 685

734 S.W.2d 685

Victor M. LARRUMBIDE, and Tillie D. Larrumbide, Individually and on Behalf of the Estate of Julia Ann Larrumbide, Deceased, Appellants, v.DOCTORS HEALTH FACILITIES d/b/a Doctors Hospital, Appellee.

No. 05-86-00482-CV.

Court of Appeals of Texas Dallas.

May 7, 1987.

Rehearing Denied Aug. 27, 1987.

Darrell Panethiere, Paula Fisette-Sweeney, Dallas, for appellants.

Charles L. Perry, Robert A. Gwinn, Dallas, for appellee.

Before WHITHAM, BAKER and LAGARDE, JJ.

LAGARDE, Justice.

Victor M. Larrumbide and Tillie D. Larrumbide appeal from a take-nothing judgment rendered in their wrongful death and survivorship action against Doctors Health Facilities d/b/a Doctors Hospital, arising from the death of their daughter, Julia.

The Larrumbides brought suit against the hospital, Dr. Thomas Froehlich, and Emergency Health Services Associates.The Larrumbides settled their claim against Froehlich and Emergency Health Services Associates for $179,000 and proceeded to trial on their claim against the hospital.The jury awarded $50,000 for Julia's conscious pain and suffering, $50,000 each to Victor and Tillie Larrumbide for past mental anguish and loss of society, $50,000 for medical, funeral, and burial expenses, and $1,000,000 exemplary damages.The trial court set aside the jury's award for exemplary damages and reduced the jury's award for medical, funeral, and burial expenses to $15,468.¹Accordingly, because the damages assessed by the jury against the hospital did not exceed the $179,000 set-off for the contributing tortfeasors, the trial court rendered a take-nothing judgment.We affirm.

In their first point of error, the Larrumbides contend:

THE DISTRICT COURT ERRED IN OVERRULING APPELLANTS' MOTION FOR NEW TRIAL AND IN ENTERING JUDGMENT ON THE JURY VERDICT, BECAUSE THE JURY FINDING THAT TILLIE LARRUMBIDE WOULD BE FAIRLY AND REASONABLY COMPENSATED FOR HER FUTURE MENTAL ANGUISH BY AN AWARD OF $0 IS AGAINST THE GREAT WEIGHT AND PREPONDERANCE OF THE EVIDENCE.

(Emphasis added).In their identically worded second point of error, the Larrumbides complain of the jury's award of "$0" for Victor Larrumbide's "future mental anguish."The complained-of jury awards, however, were made in response to a special issue that asked:

Find from a preponderance of the evidence what sum of money, if any, if paid now in cash, would fairly and reasonably compensate the Larrumbides for their losses, if any, resulting from the death of Julie Larrumbide:

* * *

* * *

Answer separately in dollars, if any.

A. Tillie Larrumbide's loss of love, society, and companionship of Julie Larrumbide, if any, together with any associated mental anguish sustained by Tillie Larrumbide directly pursuant to the death of Julie Larrumbide:

(1) Up to this date: $: 50,000

(2) During the probable remaining life expectancy of Tillie Larrumbide: $: -0-

B. Victor Larrumbide's loss of love, society, and companionship of Julie Larrumbide, if any, together with any associated mental anguish sustained by Victor Larrumbide directly pursuant to the death of Julie Larrumbide:

(1) Up to this date: $: 50,000

(2) During the probable remaining life expectancy of Victor Larrumbide: $: -0-

(Emphasis added).Thus, we first must determine whether the Larrumbides have preserved any complaint that the jury's "zero" answer for each of the Larrumbides' future loss of love, society, and companionship is against the great weight and preponderance of the evidence, or whether they have limited their complaint under these points of error to the evidence concerning future mental anguish.

It is the appellant's burden to designate, in proper assignments of error and in arguments and authorities in the brief, the particular errors relied upon for reversal.SeeKansas-Texas Railroad v. McFerrin, 156 Tex. 69, 84-85, 291 S.W.2d 931, 941(1956);Wright v. Gernandt, 559 S.W.2d 864, 872(Tex.Civ.App.--Corpus Christi 1977, no writ).This court must consider not only any issue raised by a point of error, Brown v. U.S. Life Credit Corp., 602 S.W.2d 94, 96(Tex.Civ.App.--Fort Worth 1980, no writ), but also any issue reasonably apparent from the point of error or the argument supporting it.SeeFambrough v. Wagley, 140 Tex. 577, 585-86, 169 S.W.2d 478, 482(1943);Odum v. Sims, 609 S.W.2d 881, 883(Tex.Civ.App.--San Antonio 1980, no writ);Brown, 602 S.W.2d at 96.In the present case, the Larrumbides' first two points of error refer only to the jury's answer concerning future mental anguish; they do not complain of the findings as they applied to future loss of love, society, and companionship.Similarly, in their argument supporting points of error one and two, the Larrumbides refer only to the jury finding concerning future mental anguish, e.g., "this award of 'zero' damages for future mental anguish ... warrants the granting of a new trial"; "the witnesses were unanimous in their conviction that the Larrumbides were going to continue to experience mental anguish"; "[Julia's] death caused the Larrumbides mental anguish.The jury, nevertheless, awarded $0 in damages for their future mental anguish ... [thus], a new trial should be ordered."²Even though we are mindful of the rule that points of error should be liberally construed, we are equally mindful of the rule that a fact finding by a jury which is not challenged on appeal is binding on the appellant.SeeRetama Manor Nursing Centers, Inc. v. Cole, 582 S.W.2d 196, 201(Tex.Civ.App.--Corpus Christi1979, writ ref'd n.r.e.);see alsoNewsome v. Grogan, 599 S.W.2d 881, 883(Tex.Civ.App.--Tyler1980, writ ref'd n.r.e.).Thus, we hold that by failing to attack the jury's award of "zero" damages for future loss of love, society, and companionship, the Larrumbides are bound by that finding and, in reviewing points of error one and two, we will review only the evidence regarding future mental anguish to determine whether the jury's answers are against the great weight and preponderance of the evidence.

In reviewing a complaint that the jury's answer to a special issue is against the great weight and preponderance of the evidence, this court must review all the evidence and must set aside the jury verdict and remand the cause for a new trial if the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust.SeeBurnett v. Motyka, 610 S.W.2d 735, 736(Tex.1980);Garza v. Alviar, 395 S.W.2d 821, 823(Tex.1965).

At trial, Victor Larrumbide testified that, soon after Julia's death, he and his wife sought counseling with a priest and later sought counseling from Dr. Robert Gordon, a psychologist.Victor Larrumbide testified that "the primary problem was grief.We entered a period of disarray after Julie died in that we were all coping with our grief in our own ways...."He testified that Tillie Larrumbide "has high blood pressure now and she's also suffered a very severe grievance and she ... was under a doctor's care there for awhile."The evidence reflected that Tillie Larrumbide was at the hospital and was present when Julia suffered the breathing difficulties that eventually led to brain damage and her death.Victor Larrumbide testified that his wife suffers guilt, saying "I think she'll always live with that.'If I could have taken some more action, done something else, that maybe Julie would be alive today.'I think she's going to have to live with that."

Victor Larrumbide further testified that he and his wife "can't watch television anymore, because if a hospital program comes on she'll walk out of the room or she'll tell me to change the channel."He also stated that "we can't sleep together either" because his snoring reminds Tillie Larrumbide of Julia's struggle for breath while she was in the hospital.

Victor Larrumbide also testified that "holidays are very definitely harder, especially Mother's Day, Father's Day, and Christmas, Thanksgiving."He testified that Julia "would never give us a card without writing a personal touch ... on how much I love you."Victor Larrumbide testified that Julia was "especially close with her mother" and stated "she was just a joy.I don't know any other way to put it.I mean, when you lose something like that ... it's just a big loss."

Tillie Larrumbide testified that she consulted a medical doctor approximately one month after Julia's death.The doctor diagnosed Tillie Larrumbide's condition as "depression" and prescribed medication.Tillie Larrumbide testified that, since Julia's death, her husband "is overprotective of [their other daughter].When [her] babies were born ... instead of being happy about the babies being born, we were very concerned."She further testified that "before we used to travel just for the fun of it.Now we travel as an obligation....We need to keep in touch with the family...."Tillie Larrumbide also stated: "When Julie died, like a disabled person that has lost suddenly an arm or a leg, they have to adjust.I have had to adjust, but I will not ever have Julie back ... that part of me will never ever be replaced."

Monica Larrumbide Ravensway, Julia's sister, testified that her mother and Julia were very close and that if Julia had any problem "she would go straight to my mother."She also testified that the family took vacations together.When asked what effect Julia's death had on her parents, Ravensway replied: "Well, my dad ... if he's thinking about my sister, he's very quiet.He'll answer a question for you, but it hurts him a lot ... if it's a birthday or something of this nature, they're just very quiet.He's usually very joking and very happy ... but if he's got my sister on his mind, then he's just very withdrawn."Concerning her mother, Ravensway testified that "she gets very upset.She'll go back to her room.She'll start crying....She'll just cry a lot."Ravensway also testified that, before Julia's death, Christmas was "a very big occasion" but that "after my sister passed away they...