General Shelters of Texas, Ltd., Fred Wulf Management, L.L.C. and James Campbell Management, L.L.C. v. Allen Hicks ( 2004 )

MARY'S OPINION HEADING

                                                                                    NO. 12-03-00081-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

GENERAL SHELTERS OF TEXAS, LTD.,    §                 APPEAL FROM THE 124TH

FRED WULF MANAGEMENT, L.L.C. AND

JAMES CAMPBELL MANAGEMENT, L.L.C.,

APPELLANTS

V.                                                                         §                 JUDICIAL DISTRICT COURT OF

ALLEN HICKS,

APPELLEE                                                        §                 GREGG COUNTY, TEXAS

MEMORANDUM OPINION

            Allen Hicks, Appellee, sued his employer, General Shelters of Texas, Ltd., and two of its affiliates, Fred Wulf Management, L.L.C., and James Campbell Management, L.L.C., Appellants (collectively, GST), for damages proximately caused by General Shelters’ negligence in providing him a defective vehicle in which he was required to perform his assigned tasks. The jury awarded Hicks a total sum of $49,750.00. GST was entitled to a settlement credit of $25,740.64. The trial court therefore rendered judgment for Hicks in the amount of $24,009.36, together with prejudgment interest of $3,821.21. We affirm the judgment.

Background

            General Shelters employed Hicks as a truck driver. His duties included hauling, setting up, and finishing out portable buildings within a 300-mile radius from General Shelters’ facility in Center, Texas. According to Hicks, he spent “all day long” in his truck.

            In March 1979, Pegues-Hurst Motor Company performed repairs on Hicks’s assigned truck, a 1998 Ford F-800. These repairs required the removal and reinstallation of the “dog house.” The “dog house” is a rounded fiberglass housing that covers the back of the engine and separates the engine from the cab interior. The “dog house” is normally insulated in order to prevent engine heat from entering the cab. Pegues-Hurst, however, failed to install the “dog house” insulation.

            Hicks noticed that the cab became extremely hot, especially that part of the cab close to the floorboard. Hicks complained to his supervisor about the problem. As instructed, Hicks took the truck back to Pegues-Hurst on several occasions complaining of the extreme heat in the cab, but blaming the problem on the air conditioner. Pegues-Hurst never succeeded in locating the problem until the middle of September 1999. Nevertheless, Hicks continued to drive the truck through the summer despite increasingly severe swelling, blistering, and burning of his feet and legs. Eventually the swelling progressed to the point that the skin near his ankles “busted open,” the open wounds oozing fluid.

            On October 16, 1999, after ten days of outpatient care resulted in no improvement, Hicks was taken to the emergency room and admitted to the hospital. His condition was diagnosed as cellulitis with possible sepsis, apparently referable to the recurring exposure to the extreme heat in the cab next to the motor. He remained in the hospital for six days. He was able to return to work on November 1, 1999.

            In the three years between his discharge and the trial, Hicks continued to experience pain and swelling in his lower extremities every work-day evening. Two and one-half years after his injury, Hicks still suffered some sensory loss in his legs, which a neurologist characterized as permanent.

            At the time of trial, Hicks could not tolerate heat near his feet, and his feet became swollen every day. Hicks applied cortisone cream and wore compression stockings to alleviate the swelling. There was conflicting evidence regarding when Hicks’s injury first became manifest. Hicks did not file his suit until June 12, 2001. Initially, on deposition, Hicks testified that he noticed the burning and blistering of his legs in April or May of 1999. At trial, Hicks told the jury that he began to experience the extreme heat “in the hot part of the summer” in 1999. Hicks underwent a Department of Transportation-mandated physical examination on June 3, 1999. Hicks was required to undress for the examination. The examiner noted no abnormality in Hicks’s lower extremities.

            GST moved for summary judgment based on its plea of limitations. The trial court denied the motion, and the case proceeded to trial on the merits.

Limitations

            In its first issue, GST contends the trial court erred in not dismissing Hicks’s suit because Hicks’s cause of action was barred by the statute of limitations. Immediately prior to trial, the trial court denied GST’s motion for summary judgment based upon its affirmative defense of limitations. It did not move for directed verdict on this ground at the close of evidence, nor did it request jury findings on the issue. GST did not include limitations as a basis for its motion for judgment notwithstanding the verdict. Therefore, GST’s issue is an attempt to appeal the denial of a motion for summary judgment.

            The Texas Supreme Court has routinely held that a denial of a motion for summary judgment is interlocutory by nature and thus not appealable. Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex. 1966). The only exception to the rule arises when both parties move for summary judgment, and the court grants one motion for summary judgment and denies the other resulting in a final judgment in the case rendered on a summary judgment motion. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 400 (1958). The final judgment in this case was not rendered on a summary judgment motion, and, therefore, the denial of GST’s motion for summary judgment is not reviewable.

            Moreover, as we read the record, there was conflicting evidence as to the time when Hicks knew, or should have known, of his injuries. Since its defense of limitations was not established as a matter of law, GST had the burden of obtaining jury findings supporting its plea of limitations. Tex. R. Civ. P. 279; Wichita Falls & Ok. Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79, 85 (1940); Miller v. Miles, 400 S.W.2d 4, 10 (Tex. Civ. App.–Tyler 1966, writ ref’d n.r.e.). GST’s failure to request jury findings on the limitations question or to object to their omission from the jury charge resulted in the waiver of the issue, and the issue must be deemed found in support of the judgment. Id.

            Nothing is preserved for review. Appellants’ first issue is overruled.

Future Medical Expenses

            In its second issue, GST maintains that Hicks failed to offer any competent evidence that there was a reasonable likelihood that he would incur future medical expenses. Therefore, it contends, the trial court erred in denying its motion for judgment notwithstanding the verdict and in rendering judgment on the jury’s award of $25,000 in future medical expenses.

Standard of Review

            The denial of a motion for judgment notwithstanding the verdict is reviewed under a legal sufficiency standard. Navarette v. Temple Indep. Sch. Dist., 706 S.W.2d 308, 309 (Tex. 1986). If there is more than a scintilla of evidence to support the findings, the motion for JNOV was properly denied. Mancorp v. Culpepper, 802 S.W.2d 226, 227-28 (Tex. 1990). More than a scintilla of evidence exits when the evidence “rises to a level that would enable reasonable and fair minded people to differ in their conclusions.” Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995). Therefore, we must sustain the jury’s finding of future medical expense if it is supported by more than a scintilla of evidence.

            Recovery for future medical expenses requires a showing that there is a reasonable probability that such expenses will be incurred. Fisher v. Coastal Transport Co., 149 Tex. 224, 230 S.W.2d 522, 525 (1950); Fibreboard Corp. v. Pool, 813 S.W.2d 658, 681 (Tex. App.–Texarkana, writ denied). Testimony of a “reasonable medical probability” by a medical expert is not a requisite to recovery for future medical expenses. Blankenship v. Mirick, 984 S.W.2d 771, 778 (Tex. App.–Waco 1999, pet. denied); Hughett v. Dwyre, 624 S.W.2d 401, 405 (Tex. App.–Amarillo 1981, writ ref’d n.r.e.). An award for future medical expenses may be based upon the nature of the injuries, the medical care rendered in the past, and the condition of the injured party at the time of trial. Id.

            GST complains that Hicks presented no competent expert testimony that there was a reasonable probability that he would incur future medical expenses. The only expert testimony offered by Hicks was that of neurologist Richard Ulrich. Although Dr. Ulrich testified that Hicks had suffered permanent sensory loss in his feet and legs as a result of his injuries, GST emphasizes that he also told the jury that he had not prescribed any medication, surgery, or physical therapy for Hicks and that he had not scheduled any follow-up visits for Hicks, nor referred him to another physician for further evaluation and treatment. While Dr. Ulrich was aware that Hicks was applying cortisone cream to his feet and legs, GST argues that Dr. Ulrich never said the use of the cream was necessary.

            GST argues that expert testimony is required to establish future medical expenses, although it acknowledges that there are what it characterizes as a “handful of cases” holding that non-expert testimony is sufficient. Our review of the cases, however, leads us to the conclusion that, while the preferred practice is to have a physician testify as to the reasonable probability and cost of future medical expenses, the great weight of authority requires only “that there be evidence in the record of the reasonable value of past medical treatment and to establish the probable necessity of future medical treatment.” Thate v. Tex. & Pac. Ry. Co., 595 S.W.2d 591, 601 (Tex. Civ. App.–Dallas 1980, writ dism’d) (cited by Appellants); see also Blankenship v. Mirick, 984 S.W.2d 771, 778 (Tex. App.–Waco 1999, pet. denied ) and the cases cited therein. In the often cited case of Hughett v. Dwyre, the court stated the majority view, as follows:

Texas courts have also consistently held that the award of future medical expenses is a matter primarily for the jury to determine. No precise evidence is required. The jury may make its award based upon the nature of the injuries, the medical care rendered before trial, and the condition of the injured party at the time of trial.

Hughett, 624 S.W.2d at 405.

            Hicks entered the hospital in a wheelchair suffering from burns to his legs, severe cellulitis, and possible sepsis caused by the constant burning and blistering of his lower extremities while driving the defective truck. Almost three years later, Dr. Ulrich described the nerve damage in his lower limbs as permanent. Dr. Ulrich knew that Hicks was using cortisone cream, noting in his records that “at the time, I think he is content using over-the-counter medications to treat his leg symptoms.” Hicks incurred past medical expenses totaling $11,797.05.

            At the time of trial, Hicks was forty-five years of age. He continued to experience daily swelling of his legs, ankles, and feet that he attempted to alleviate with cortisone cream and compression hose. He remained extraordinarily sensitive to heat around his lower extremities. He used a tube-and-a-half of cortisone cream each week costing at that time $8.50 per tube. The support hose cost $14.00 a pair. The record indicates that Hicks’s condition had not noticeably improved during the year preceding trial, justifying the inference that further recovery was unlikely.

            Considering the nature of Hicks’s injuries, the past medical care he had received, and his condition at trial, we conclude that there is enough evidence, amounting to more than a scintilla, to support the jury’s award for future medical expenses. The evidence is legally sufficient. The trial court did not err in denying GST’s motion for JNOV. GST’s second issue is overruled.

Disposition

            Having overruled the issues presented, we affirm the judgment of the trial court.

                                                                                                    BILL BASS

                                                                                                            Justice

Opinion delivered June 30, 2004.

Panel consisted of Worthen, C.J., Griffith, J., and Bass, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.

.

(PUBLISH)