Rebecca F. Moore v. Texas Workers' Compensation Insurance Fund ( 2003 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                             Memorandum Opinion

Rebecca F. Moore

Appellant

Vs.                   No. 11-02-00121-CV B Appeal from Dallas County

Texas Workers= Compensation Insurance Fund

Appellee

Appellant, Rebecca F. Moore, appeals pro se from an adverse finding by the jury that appellant was not entitled to supplemental income benefits from appellee, Texas Workers= Compensation Insurance Fund.  We affirm.

In Issue No. I, appellant contends that the trial court erred in denying her motion for new trial without conducting a hearing. We disagree. 

Appellant filed her APro Se@ motion for new trial on February 5, 2002.  The record indicates that, at that time, appellant also filed an AOrder Setting Hearing Date@ which required the trial court=s signature setting the hearing date on the motion.  This order was not signed by the court.  On February 19, 2002, the trial court signed the order denying the motion without conducting a hearing.

The trial court=s ruling on a motion for new trial will not be disturbed on appeal in the absence of a showing of an abuse of discretion.  Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex.1984).  Appellant=s complaints in her motion did not require evidence that Amust be heard@ pursuant to TEX.R.CIV.P. 324(b)(1), such as jury misconduct, newly-discovered evidence, or failure to set aside a default judgment.  The court in University of Texas v. Morris, 352 S.W.2d 947, 949 (Tex.1962), cert. den=d, 371 U.S. 953 (1963), stated:

Certainly it would not be error for the court to refuse to hold a hearing on a motion for a new trial except where it would be necessary to hear evidence upon a matter such as jury misconduct.

The Morris court approved the following statement:

As to just when and how the motion is heard by the court is a matter addressed to the discretion of the court and one which the litigant can not control.  It is true that the litigant must present the motion to the court without qualification or reservation, and if the court immediately passes on the motion he is not in a position to complain.

See Cecil v. Smith, 804 S.W.2d 509, 511 n.5 (Tex.1991).  The record also fails to show that appellant brought her request for a hearing to the trial court=s attention before the court denied her motion.  Fluty v. Simmons Company, 835 S.W.2d 664, 666 (Tex.App. - Dallas 1992, no writ).  Appellant=s Issue No. I is overruled.

In Issues Nos. II, III, and IV, appellant argues that the trial court erred in excluding from evidence the AERGOS@ Evaluation Summary Report.  Appellant failed to preserve error when she made no offer of proof after the court excluded the ERGOS report.  The substance of the excluded evidence must be made known to the trial court. TEX.R.EVID. 103(a); Fletcher v. Minnesota Mining and Manufacturing Company, 57 S.W.3d 602 (Tex.App. - Houston [1st Dist.] 2001, pet=n den=d).  Appellant=s Issues Nos. II, III, and IV are overruled.

Appellant contends in her Issue No. V that the trial court erred in admitting Dr. Farrukh Hamid=s report. Appellant did not timely object to the challenged evidence at the time of trial.  Appellant failed to preserve her complaint.  TEX.R.APP.P. 33.1(a).  Appellant=s Issue No. V is overruled.

Appellant states in her Issue No. VI that the trial court erred in admitting irrelevant evidence, misleading and derogatory statements, and erroneous conclusions that were prejudicial to appellant.  These contentions are not properly briefed. Appellant=s brief contains no Aargument@ or appropriate citation to authorities as required by TEX.R.APP.P. 38.1(h).  In her AStatement of Facts,@ appellant directs the court to certain questions that appellee asked appellant regarding her ability to Alift@ heavy objects.  Appellee was questioning appellant regarding her prior work as a nurse and whether she was required to do heavy lifting.  We hold that the trial court did not err in overruling appellant=s Arelevance@ objection.  Appellant=s work experience and prior job requirements were relevant.

Appellant challenges appellee=s questions on cross-examination of appellant regarding the amount of compensation appellant had received.  Appellant=s counsel objected that it would be Apure speculation@ on appellant=s behalf because appellant did not know how much the insurance company had paid.  The court stated: AI=ll sustain unless there=s a foundation.@  Appellee did not pursue this line of questioning.  The court did not overrule appellant=s objection.

In the AStatement of Facts,@ appellant states that appellee mischaracterized the evidence by claiming in its questions to appellant that appellant was dissatisfied with certain doctors and that appellant threatened Dr. Hamid.  Appellant did not object to the cross-examination questions regarding Dr. Hamid.  When appellee=s counsel was cross-examining appellant regarding her changing of doctors, appellant=s counsel objected that appellee=s counsel was mischaracterizing the evidence.  The court overruled the objection because it was proper cross-examination.  We hold that the court did not err in overruling the objection.

Furthermore, we hold that the error urged by appellant did not cause the rendition of an improper judgment.  TEX.R.APP.P. 44.1(a)(1).  Appellant=s Issue No. VI is overruled.

In Issues Nos. VII, VIII, and IX, appellant challenges the sufficiency of the evidence to support the jury=s verdict. Again, appellant fails to comply with the briefing requirements of Rule 38.1(h).  Appellant had the burden of proof because she was the party seeking judicial review.  TEX. LABOR CODE ANN. ' 410.303 (Vernon 1996); Texas Workers= Compensation Insurance Fund v. Martinez, 30 S.W.3d 490, 493 (Tex.App. - Texarkana 2000, pet=n den=d). In reviewing appellant=s legal sufficiency challenge, we consider the evidence in the light most favorable to appellee, indulging every reasonable inference in appellee=s favor. Associated Indemnity Corporation v. Cat Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex.1998).  In considering appellant=s factually insufficient evidence complaint, we review and consider all of the evidence and reverse the jury=s verdict only if the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.  Cain v. Bain, 709 S.W.2d 175 (Tex.1986); Pool v. Ford Motor Company, 715 S.W.2d 629 (Tex.1986). 

The trial court instructed the jury that, in order for an injured employee to be entitled to supplemental income benefits, Aan injured employee who has not returned to work and is able to return to work in any capacity shall look for employment commensurate with his or her ability to work every week.@  There was evidence that Dr. Phillip Osborne, Dr. Hamid, and Cascade Disability Management, Inc. concluded that appellant had the ability to do sedentary light work.  There is evidence that appellant did not seek employment during the appropriate time period.  Appellant=s legal sufficiency challenge to the evidence is overruled.

The jury found in favor of appellee.  We hold that the finding by the jury adverse to appellant is not so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust.  Appellant=s factually insufficiency challenge to the evidence is overruled.  We overrule appellant=s Issues Nos. VII, VIII, and IX.

The judgment of the trial court is affirmed.

AUSTIN McCLOUD

SENIOR JUSTICE

February 20, 2003

Panel consists of: Arnot, C.J., and

McCall, J., and McCloud, S.J.^[1]

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^[1]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.