Morse v. Delgado

• Decision Date: 26 August 1998
• Docket Number: No. 10-97-286-CV,10-97-286-CV
• Citation: 975 S.W.2d 378
• Parties: Jason MORSE, Appellant, v. Carlos DELGADO, Appellee.
• Court: Texas Court of Appeals

Page 378

975 S.W.2d 378

Jason MORSE, Appellant, v. Carlos DELGADO, Appellee.

No. 10-97-286-CV.

Court of Appeals of Texas Waco.

Aug. 26, 1998.

Richard W.B. "Rick" Davis, P.C., Bryan, for appellant.

J. Hans Barcus, West, Webb, Allbritton & Gentry, P.C., College Station, for appellee.

Before DAVIS, C.J., and CUMMINGS and VANCE, JJ.

OPINION

DAVIS, Chief Justice.

Jason Morse filed suit against Carlos Delgado for damages allegedly sustained as a result of a collision between Morse's Jeep Wrangler and Delgado's Toyota Celica. A jury found that the negligence of both proximately caused the collision; that Morse was thirty percent responsible and Delgado was seventy percent responsible for the collision; and that Morse was entitled to $3,800 in damages for past medical expenses. The jury did not award damages for past and future pain and mental anguish; past and future physical impairment; future medical expenses; or past loss of earning capacity. In accordance with the verdict, the court rendered judgment that Morse recover $2,660 ¹ in damages from Delgado.

Morse brings this appeal asserting in three points that the jury's award of damages is contrary to the overwhelming weight of the evidence and wholly inadequate and that the court erred in denying his motion to strike Delgado's amended answer. We will affirm the judgment.

FACTUAL BACKGROUND

This litigation arises from a collision between Morse's and Delgado's vehicles which occurred in College Station on May 30, 1996. Morse was driving north on Texas Avenue approaching its intersection with George Bush Drive and entered the turning lane to turn left on George Bush. Delgado was attempting to exit from a Texaco station located on the east side of Texas near the intersection. Apparently a red light caused traffic to back up on Texas, and other motorists allowed Delgado room to make his left turn. Delgado slowly crossed several lanes of traffic and entered the left turn lane. He did not see Morse's Jeep, and Morse did not see his Celica until Delgado was entering the turn lane. Morse collided with Delgado, which resulted in substantial damage to the Celica and minor damage to the Jeep.

A police officer drove upon the accident scene within minutes. Morse declined her offer to call an ambulance. According to Morse, he began to experience pain in his neck about thirty minutes after the collision. The next day he visited a chiropractor who treated him over the course of the next three months. The chiropractor also referred him to other physicians who examined him and assessed his condition.

Morse filed suit on October 31, 1996. The parties proceeded to trial on May 12 of the next year.

FACTUAL SUFFICIENCY

Morse argues in his first point that the jury's failure to award any damages for past and future pain and mental anguish, past and future physical impairment, future medical expenses, or past loss of earning capacity is contrary to the overwhelming weight of the evidence. This point essentially challenges the factual sufficiency of the evidence to support the verdict. See Crow v. Burnett, 951 S.W.2d 894, 897 (Tex.App.--Waco 1997, pet. denied). Delgado responds that Morse has waived his right to challenge the sufficiency of the evidence because his counsel signed off on a proposed judgment with the notation "approved as to form."

WAIVER OF SUFFICIENCY CHALLENGE

Generally after verdict a party can obtain judgment by filing a motion for judgment or by tendering a proposed judgment to the court. See TEX.R. CIV. P. 301, 305. If a party files a motion for judgment on the verdict and does not indicate in some manner that it disagrees with the substance of the verdict, then that party cannot challenge on appeal the judgment it requested. First Nat'l Bank v. Fojtik, 775 S.W.2d 632, 633 (Tex.1989); Litton Indus. Prod., Inc. v. Gammage, 668 S.W.2d 319, 321-22 (Tex.1984). This rule is nothing more than a species of the invited error doctrine which prohibits a party from complaining on appeal about an error which he invited. See Texas Indus., Inc. v. Vaughan, 919 S.W.2d 798, 804 (Tex.App.--Houston [14th Dist.] 1996, writ denied).

When counsel submits a proposed judgment to the court, he generally obtains consent from opposing counsel indicating that the opposing party approves the proposed judgment as to form or as to form and substance. This practice allows the court to enter judgment without conducting a hearing to determine whether the opposing party has any objections to the proposed judgment. It facilitates the prompt entry of judgment and the initiation of the appellate process. See Fojtik, 775 S.W.2d at 633.

In this case, Morse's counsel indicated that he did not oppose the form of the proposed judgment, but counsel did not represent that he agreed with the substance of the judgment. The rule announced in Litton Industrial Products does not apply in this situation. See John Masek Corp. v. Davis, 848 S.W.2d 170, 174-75 (Tex.App.--Houston [1st Dist.] 1992, writ denied). Thus, we reject Delgado's waiver argument.

APPLICABLE LAW

A factual sufficiency challenge requires us to consider and weigh all the evidence. Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex.1985); In re King's Estate, 150 Tex. 662, 664-65, 244 S.W.2d 660, 661 (1951). We will set aside the verdict only if it is "so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Dyson, 692 S.W.2d at 457.

In a prior opinion we set forth at length the analysis we employ when evaluating the sufficiency of the evidence to support a jury's finding of no damages. See Crow, 951 S.W.2d at 897-98. Although the jury awarded Morse some damages for past medical expenses, he only complains on appeal about the jury's failure to award damages for the other elements submitted. Thus, we will apply the same analysis we used in Crow to these uncompensated elements.

As we stated in Crow,

[A]ppellate courts are more reluctant to hold jury findings of no damages for pain and suffering contrary to the great weight and preponderance of the evidence when the indicia of injury and damages are more subjective than objective. The more evidence of outward signs of pain, the less findings of damages depend upon the claimant's own feelings and complaints, the more likely appellate courts are to overturn jury findings of no damages for pain and suffering.

Id. at 898 (quoting Blizzard v. Nationwide Mut. Fire Ins. Co., 756 S.W.2d 801, 805 (Tex.App.--Dallas 1988, no writ)). ² To facilitate our review, we set out the pertinent evidence relating to the elements of damages submitted to the jury.

THE PERTINENT EVIDENCE

Carlos Delgado

According to Delgado, Morse "ran across the street to call the cops" after the collision. Initially, both told the officer they were not hurt. "At the very end," the officer asked Morse if he was okay, and "he put his hand on his neck and said, 'Yeah, my neck kind of hurts' and kind of chuckled a little bit." Morse declined the officer's offer to call an ambulance.

Jason Morse

Morse testified that he jested with the officer when she arrived but denied joking about any injury. He explained that he did not initially think he was hurt but began to feel pain between twenty and thirty minutes after the collision. He initially testified that he did not recall telling the officer about any pain but later recalled telling her after thirty minutes had passed at the scene that he was beginning to hurt. However, he refused the officer's offer to call an ambulance. Morse testified that he carried boxes as heavy as twenty pounds later that night because he was moving. He saw no reason at the time to think he should not carry the boxes. His neck hurt more later that night. He took aspirin for the pain and slept uncomfortably.

Morse saw Dr. David Dudycha the next day. Dudycha treated him regularly for three months. Each visit relieved Morse's pain for a period of time. The pain was pretty bad at first but has decreased. Morse testified that he woke up at night "several times" because of the pain and still does "from time to time." He acknowledges that as his pain diminished over time, the treatments became less necessary. Morse testified that he stopped receiving treatments as frequently because he could not afford the time away from school, work, and family.

Morse had been laid off from work on the day of the accident. Dudycha gave him a generic absence authorization stating that he should be excused from June 3 to June 30. Morse understood this to be an excuse from strenuous activities, even though he did not have a job at the time. He testified that it would have been difficult for him to work during the month following the accident because of the pain. He began his next job with J & M Industries in the latter part of June. It was difficult to do routine things like sit at his desk because of the pain. He explained that his neck tightens and he experiences numbness in his shoulder, making it difficult to sit at his desk for long periods of time, and that he cannot perform strenuous activities like heavy lifting without feeling pain.

Morse worked as many as forty hours per week with J & M until the fall semester began. Although his position did not require heavy lifting, he testified that he did do some lifting. Delgado impeached him with his prior deposition testimony that he did not do any lifting at J & M "for a long time." Morse stated that in his present job as an engineer he is essentially a "pencil pusher." The accident did not prevent him from becoming an engineer, which is what he went to college to become.

Morse gained between fifteen and twenty pounds after the accident because he could not lift weights or play sports as before. He began exercising again around the first of April 1997 but cannot exercise as well as before. The pain is frustrating, and he is concerned about possible future medical treatments. The thought of possible surgery in the future and potential...