Pope v. Moore
| Decision Date | 11 June 1986 |
| Docket Number | No. C-4679,C-4679 |
| Citation | 711 S.W.2d 622,29 Tex.Sup.Ct.J. 412 |
| Parties | William H. (Bill) POPE, Individually and d/b/a Flying-P Ranch and Cycle Park, Petitioner, v. Ronnie Franklin MOORE et ux., Respondents. |
| Court | Texas Supreme Court |
Harold D. Hammett, Fort Worth, for petitioner.
Thomas V. Murto, III, R. Jack Ayres, Jr., P.C., Dallas, for respondents.
The question is whether the court of appeals applied the proper remittitur standard. The court of appeals remitted $50,000 in damages in a personal injury suit, although the court found the evidence for these damages legally and factually sufficient. Because we believe the court of appeals applied an improper remittitur standard, we modify its judgment.
On February 28, 1982, Ronnie Moore rode in a motorcycle race at the Flying-P Ranch and Cycle Park in Parker County, Texas. While riding, he fell off his motorcycle, collided head first with a railroad tie and broke his neck. Moore and his wife, Sandra, filed suit against Pope, individually and d/b/a Flying-P Ranch and Cycle Park; Dallas Emergency Corps. d/b/a Lifecare Ambulance Service; and Cross-Country of Texas, Inc. The Moores alleged that the defendants were negligent in failing to properly design the racetrack, in failing to advise of known dangers at the racetrack (the railroad tie), and in failing to properly ensure that the racetrack was safe for its intended purposes. Pope was served but did not answer.
The trial court rendered a no-answer default judgment against Pope, and after hearing evidence on damages, awarded the Moores $289,000. The trial court then severed the Moores' claims against the other defendants. In an unpublished opinion, the court of appeals affirmed the judgment, but remitted $17,000 in past medical expenses and $50,000 in future damages, including future medical expenses, lost wages, pain and suffering, and loss of consortium.
The Moores contest the court of appeals' standard in remitting $50,000 in future damages, including medical expenses, lost wages, pain and suffering, and loss of consortium. In remitting these damages, the court of appeals reviewed all the evidence on damages and then stated:
[W]e hold the evidence was legally and factually sufficient to support awards for [future medical expenses], future lost wages, and future pain and suffering suffered by Ronnie and for the $10,000 awarded to Sandra for future loss of consortium. Nevertheless, in light of the entire record, we find and hold that the awards for future damages, which would include medical expenses, lost wages, pain and suffering and loss of consortium were excessive in the amount of $50,000.
The Moores contend that the proper remittitur standard is factual sufficiency, and therefore, the court of appeals could not order a remittitur after finding the evidence for their damages factually sufficient. We agree.
Tex.R.Civ.P. 440 states:
In civil cases appealed to a Court of Appeals, if such court is of the opinion that the verdict and judgment of the trial court is excessive and that said cause should be reversed for that reason only, then said appellate court shall indicate to such party, or his attorney, within what time he may file a remittitur of such excess. If such remittitur is so filed, then the court shall reform and affirm such judgment in accordance therewith; if not filed as indicated then the judgment shall be reversed. (emphasis added)
We have jurisdiction because determining the proper remittitur standard is a question of law. Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835, 839 (1959). The often cited remittitur standard is set forth in Wilson v. Freeman :
All the Court of Civil Appeals can do, and all that is required of it to do, by said statute, is to exercise its sound judicial judgment and discretion in ascertaining what amount would be reasonable compensation for the injury sustained, and treat the balance as excess. The court must first determine what amount would be reasonable, before it can determine what amount would be unreasonable.... [I]t should authorize a remittitur of the excess above the amount which would be reasonable compensation for the injury, in accordance with its sound judgment.
185 S.W. 993, 994 (Tex.1916), paraphrased in Flanigan v. Carswell, 324 S.W.2d at 850. The court of appeals interpreted Wilson to mean that a court must decide, on its own and outside the record, upon a reasonable amount of damages, then remit the excess regardless of the factual or legal sufficiency of the...
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