rubye-mangum-as-of-the-estate-of-la-vada-oakes-and-as-beneficiary-of-the ( 2007 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-07-00004-CV

Rubye Mangum, as Executrix OF

the Estate of La Vada Oakes and

as Beneficiary of the Will of

La Vada Oakes and Paul Bradley

Walker and Brenda Walker Owens,

                                                                                    Appellants

 v.

Trent Turner and Donny Turner,

                                                                                    Appellees

From the 77th District Court

Freestone County, Texas

Trial Court No. 04-219-B

ORDER of partial dismissal

Appellants Brenda Walker Owens and Paul Bradley Walker have filed a motion to dismiss their appeal but not the appeal of Appellant Rubye Mangum, as Executrix of the Estate of LaVada Oakes and as Beneficiary of the Will of LaVada Oakes.  See Tex. R. App. P. 42.1(a)(1).  Appellees Trent Turner and Donny Turner have filed their amended motion to dismiss appeal as to Appellants Owens and Walker and thus do not oppose the motion of Appellants Owens and Walker.

Dismissal of this appeal would not prevent a party from seeking relief to which it would otherwise be entitled.  The motion to dismiss of Appellants Owens and Walker is granted.  The appeal is dismissed only as to Appellants Brenda Walker Owens and Paul Bradley Walker.

The amended motion to dismiss appeal is dismissed as moot.

PER CURIAM

Before Chief Justice Gray,

            Justice Vance, and

            Justice Reyna

Appeal dismissed only as to Appellants Owens and Walker;

Amended motion to dismiss appeal dismissed as moot

Order issued and filed December 5, 2007

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The May release was never introduced into evidence.

Dr. Buchmeyer first started treating appellant in January of 1975 when she was 58 years of age. Appellant had fallen and injured her left forearm and her tailbone at that time. Dr. Buchmeyer also saw appellant in August of 1980, when he had her hospitalized for treatment of severe bursitis in her right shoulder. Dr. Buchmeyer's written report of this incident recited that appellant "was apparently well until the day prior to admission [to the hospital] when she lifted her right hand to turn off a light and developed sudden severe pain in the right shoulder. The pain continued unabated and she reported to the clinic. A physical examination disclosed marked tenderness of the shoulder, worse at the subdeltoid and subacromial areas. . . . X-rays of the right shoulder showed bursitis changes." The report continued with statements that her arm was placed in a sling, and she was started on anti-inflammatory medications and a general diet, and that with this treatment regimen her symptoms improved.

On April 25, 1983, Dr. Buchmeyer referred appellant to Dr. James Fahey, an orthopedic surgeon in Corsicana, for treatment of appellant's complaints of pain with her wrist and right shoulder and neck that she said resulted from the injury she received on February 7th when the bedrail fell on her wrist. Dr. Fahey's notes made on April 25th reflected that X-rays taken at the time of injury showed no injuries to the bone, no fractures and no evidence of dislocation; that appellant complained of continued pain and discomfort in her wrist and described numbness from the wrist down to the fingers; that she had no night pain, no swelling, and no restricted motion; that she had no evidence of any nerve impairment by clinical examination in that she had no atrophy and the description of numbness was not physiologic; and that his impression was "right wrist pain of questionable etiology." He recommended an "EMG and nerve conduction study to evaluate possible peripheral nerve injury." This EMG and nerve conduction study was performed by Dr. John Ferguson, a neurologist in Waco, on May 3rd. Dr. Ferguson concluded his report by stating that "The above studies are all normal," and "There is no evidence of nerve or muscle damage from the above tests."

Dr. Fahey examined her again on May 23, 1983 and on May 30th. He concluded that surgery on a tendon was needed, described in his report as a "release of the first dorsal compartment." This surgery was performed on June 10, 1983. Nevertheless, appellant continued having the same problems. She was seen by Dr. Fahey, after release from the surgery, on July 1, 1983, July 11th, and August 1st. It was on the August 1st visit that appellant first complained to Dr. Fahey of pain in her neck and shoulder. Dr. Fahey concluded his written report that followed the examination of appellant on August 1st by stating, "Right upper extremity pain of questionable etiology." He recommended neurologic evaluation.

Appellant was seen on October 27, 1983, by Dr. Kevin McBride who is board certified in oral and maxillofacial surgery. Dr. McBride testified that appellant's neck problem was related to a problem with her jaw joints; that her problem was "an arthritic kind of condition"; that the pain was going from the jaw joints to the neck; that appellant had a moderate arthritic degeneration that took several years if not many years to get to the degree of degeneration that he found in her jaw joints; and that he could not determine a relationship between appellant's problems with her jaw joints and her wrist injury.

A myelogram and CAT scan were performed on appellant's neck on May 27, 1987. They revealed abnormalities between the 5th and 6th vertebrae in the neck. In summary, most of the medical testimony characterized these abnormalities as degenerative osteo-arthritis.

Dr. Fahey said that "overshadowing" of one pain over another only lasts a week or ten days, not two months or four months. He said he never thought about X-raying appellant's neck and shoulder because clinically she did not have anything wrong. He also testified that the X-rays and CAT scan and myelogram showed degenerative osteo-arthritis of the cervical spine, and that as a result of this appellant could have experienced neck pain regardless of any injury.

Dr. Buchmeyer said he had the myelogram and the CAT scan tests made in May 1987, because appellant "never was completely free of [pain]. And we had done everything that we knew to do. She saw me on a regular basis. I had sent her to different specialists; and we did not get much help from them. And I was just having a hard time treating her, a hard time helping her." He said that between 1983 and 1987 he saw appellant in November of 1983; in January and twice in February, twice in March and once in May and June, and July and August of 1984; that the visit in August of 1984 was not related to her neck, but "she was having other problems that were bothering quite a bit at that time"; that he saw her in January, March, November and December in 1985; that she came in February of 1986 and stated that her shoulder and her hand were much worse and that he "started seeing her pretty often again"; that he saw her in January 1987 because she had fallen in her bathtub and injured her ribs, fracturing a rib.

The trial was held in February, March and June 1989.

Following the test set forth in Pool v. Ford Motor Company, 715 S.W.2d 629, 635 (Tex.1986) and Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex.1980), we hold that the evidence we have recited was legally sufficient to support determinations by the jury that appellant's total incapacity was related solely to the injury to her wrist and that such incapacity ended on March 14, 1983. There was ample evidence, principally the testimony of Dr. Buchmeyer, appellant, appellant's husband and her son, that would have supported jury determinations that the injury also included the shoulder and neck, and that the incapacity extended beyond March 14, 1983. Nevertheless, following the test in Pool and Motyka and considering all of the evidence, we find that the jury's failure to find that appellant suffered total incapacity after March 14, 1983, was not against the great weight and preponderance of the evidence.

Appellant asserts that the evidence of surgery on appellant's wrist by Dr. Fahey in June 1983 was conclusive proof of total incapacity during the time of the surgery, requiring a finding that the jury's answer to question number 3B was against the great weight and preponderance of the evidence. The jury was asked to find in response to jury questions numbers 3A and 3B total incapacity caused by the injury of February 7, 1983. We hold that under all of the evidence the jury was entitled to believe that appellant's complaints upon which the surgery was based did not result from the injury in question.

Appellant's points and contentions are overruled. The judgment is affirmed.

                               VIC HALL

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