Rumzek v. Lucchesi

• Citation: 543 S.W.3d 327
• Decision Date: 15 November 2017
• Docket Number: No. 08-15-00067-CV,08-15-00067-CV
• Parties: Harold A. RUMZEK, Appellant, v. Bryan D. LUCCHESI, Appellee.
• Court: Court of Appeals of Texas

543 S.W.3d 327

Harold A. RUMZEK, Appellant,

v.Bryan D. LUCCHESI, Appellee.

No. 08-15-00067-CV

Court of Appeals of Texas, El Paso.

November 15, 2017

ATTORNEY FOR APPELLANT: Ernest (Skip) Reynolds, 314 Main St., Ste. 202, Fort Worth, TX 76102-7423.

ATTORNEY FOR APPELLEE: Hon. Gregory R. Ave, Walters, Balido & Crain, L.L.P., Meadow Park Tower, 15th Floor, 10440 North Central Expresway, Dallas, TX 75231.

Before McClure, C.J., Rodriguez, and Hughes, JJ.

OPINION

YVONNE T. RODRIGUEZ, Justice

This is an appeal from a final judgment, in which a jury found that Appellee Bryan D. Lucchesi’s negligence was the proximate cause of an automobile collision he had with Appellant Harold A. Rumzek. In spite of Appellee’s negligence, the jury awarded Appellant zero damages for his past physical pain and mental anguish, his past physical impairment, and his past medical care expenses. Appellant contends that the jury’s failure to award him any damages was against the great weight and preponderance of the evidence. Further, he argues the trial court erred by entering the final judgment without including an award of damages, and by failing to modify its final judgment to include an award of damages. We affirm.¹

FACTUAL BACKGROUND

The undisputed facts reveal that Appellant was driving his 2009 Cadillac STS southbound in the far-right lane of Precinct Line Road in Hurst, Texas at approximately noon on August 22, 2011. At the same time, Appellee was also traveling southbound in the middle lane of the same road next to Appellant. Both parties recall hearing a siren from an emergency vehicle just as they passed through the intersection of Cannon Drive and Precinct Line Road. Appellee recalled seeing a firetruck traveling westbound on Cannon Drive, and, anticipating that it was turning onto Precinct Line Road, he attempted to turn his car to the right side of the road to avoid it.² Unfortunately, Appellee admittedly failed to see Appellant’s car as he was changing lanes, and struck the driver’s side of Appellant’s car, where Appellant was sitting in the driver’s seat.

Appellee’s car suffered minor damage, in the form of a dent the approximate size of a baseball on the passenger side of his vehicle. Appellant’s car suffered dents on the driver’s door and the front fender, as well as scrape marks on the side of the car, but his car’s air bags did not deploy. The parties called the police, but there is nothing in the record to indicate that either party was cited in the accident. Appellant was able to drive his vehicle home after the accident.

At the time of the accident, Appellant told Appellee and the police that he was not certain whether he was injured. However, Appellant testified that he was in pain that night, and that he even suspected he might have a broken collar bone

as early as the same night of the accident. Nevertheless, as he believed the pain would go away, Appellant admittedly did not seek treatment for any injuries until three weeks after the accident. Instead, Appellant went on a previously-planned 12- to 14-day vacation, in which he drove from his home in Colleyville, Texas, to Michigan and Ohio and back to Colleyville, taking four days to drive each way. When he returned from his trip, Appellant went to the Baylor Clinic on September 14, 2011, where his treating physician took an x-ray to rule out a broken collar bone. His doctor diagnosed him with a cervical spine strain, a left shoulder AC sprain, and "[d]egenerative disk disease from C4-C7" and prescribed a course of physical therapy for him related to the pain in his left shoulder and neck.

Appellant saw at least two different physical therapists at the clinic from September 30, 2011 to May 8, 2012, and was required to go back to his doctor for a renewal of the physical therapy prescription every six weeks. In all, Appellant had 55 physical therapy treatments for his left neck and shoulder pain, and seven office visits before he was discharged on May 8, 2012.

Appellee admitted at the time of the accident, and at trial, that he was at fault in the accident, and prior to trial, his insurance carrier paid for the repairs to Appellant’s vehicle. The only issue remaining at trial was whether Appellant was entitled to any damages for the personal injuries he allegedly suffered in the accident.

At trial, Appellant testified that he suffered from "piercing" and "very persistent" neck and shoulder pain following the accident, as well as muscle spasms, which he claimed interfered with his ability to perform his daily tasks and volunteer work. He also became depressed and suffered mental anguish. Appellant’s second physical therapist testified to the course of treatment that she provided to him, as well as his medical records and physical therapy notes. Evidence of Appellant’s medical expenses through medical records affidavits from the clinic, together with various billing records, indicated that his total expenses were $15,234.64.

Following trial, the jury found that Appellee’s negligence was the proximate cause of the collision. The jury was then asked the amount of damages to which Appellant was entitled for his alleged past physical pain and mental anguish, future physical pain and mental anguish, past physical impairment, future physical impairment, and past medical care expenses.³ The jury entered zero in response to each question, and the trial court entered a final judgment in accordance with the jury’s verdict. Appellant thereafter filed a motion to modify or correct the jury’s verdict, which was denied. Appellant appeals from the jury’s verdict.

DISCUSSION

In three separate issues (Issues Three, Four, and Five in his brief), Appellant contends that the jury’s zero damages verdict was against the great weight and preponderance of the evidence, such as to be "manifestly unjust," and that the evidence he presented at trial required the jury to award him damages for his claims for past medical expenses, his past physical pain and mental anguish, and his past physical impairment. In three additional but related arguments (Issues One, Six, and Seven), Appellant argues that the trial court erred by entering its final judgment without including an award of damages and that the trial court erred by failing to correct or modify the final judgment to make an award of damages; Appellant further argues that because of the jury’s allegedly improper verdict and the trial court’s failure to correct the verdict, the matter should be remanded to the trial court for a new trial on the issue of damages. Because we conclude that the jury had the discretion to enter a zero damages verdict on all of Appellant’s claims, we find it appropriate to consider these six issues together. We consider separately Appellant’s argument (Issue Two in his brief) that the medical record affidavits he submitted at trial setting forth the amount of his medical expenses required the jury, as a matter of law, to enter a damages award in the amount of those expenses.

THE JURY'S VERDICT WAS NOT AGAINST THE GREAT WEIGHT AND PREPONDERANCE OF THE EVIDENCE

Standard of Review and Applicable Law

Generally, a jury has great discretion in considering evidence on the issue of damages. See In re State Farm Mut. Auto. Ins. Co., 483 S.W.3d 249, 263 (Tex. App.—Fort Worth 2016, no pet.) ; Hammett v. Zimmerman , 804 S.W.2d 663, 664–65 (Tex. App.—Fort Worth 1991, no writ) ; see also McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986) (the trier of fact is afforded considerable discretion in evaluating opinion testimony on the issue of damages). Nevertheless, a court may overturn a jury’s finding on damages if the evidence supporting its findings is so weak or the jury’s findings are so contrary to the great weight and preponderance of the evidence such as to be clearly wrong and unjust. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) ; see also Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (in reversing a jury’s verdict on appeal, appellate court must "detail the evidence relevant to the issue in consideration and clearly state why the jury’s finding is factually insufficient or is so against the great weight and preponderance as to be manifestly unjust; why it shocks the conscience; or clearly demonstrates bias").

In reviewing an argument that the jury’s failure to make a finding of damages is "against the great weight and preponderance" of the evidence, we must consider and weigh all of the evidence, keeping in mind that the jurors are the sole judges of the credibility of witnesses and the weight to be given their testimony, and may choose to believe one witness and disbelieve another. See Golden Eagle Archery, Inc. v. Jackson , 116 S.W.3d 757, 761 (Tex. 2003) ; City of Keller v. Wilson , 168 S.W.3d 802, 819 (Tex. 2005) ; McGuffin v. Terrell , 732 S.W.2d 425, 428 (Tex. App.—Fort Worth 1987, no writ) (although an appellate court has the authority to overturn a jury’s verdict if it is against the great weight and preponderance of the evidence, the credibility and weight to be given the evidence are within the province of the jury and we cannot substitute our judgment for that of the jury just because we might have reached a different conclusion); Montgomery Independent School Dist. v. Davis , 34 S.W.3d 559, 567 (Tex. 2000) (citing Webb v. Jorns , 488 S.W.2d 407, 411 (Tex. 1972) ) (jurors alone "resolve conflicts and inconsistencies in the testimony of any one witness as well as in the testimony of different witnesses").

In resolving an issue of this nature, Texas courts, including the Fort Worth Court of Appeals, have uniformly recognized a distinction between cases in which the plaintiff has presented uncontroverted "objective" evidence of an injury caused by a defendant’s negligence, and cases in which the plaintiff’s injuries are more "subjective" in nature. See, e.g. , In re State Farm Mut. Auto. Ins. Co., 483 S.W.3d at 263 ; Hammett , 804 S.W.2d at 665–66 ; see also Thompson v. Stolar, 458 S.W.3d 46, 62 ...