Ernesto Camilo Tagle and Triple R Trucking, Inc. v. Ricardo Galvan ( 2004 )

CONCURRING OPINION No. 04-03-00673-CV Ernesto Camilo TAGLE and Triple R Trucking, Inc., Appellants v. Ricardo GALVAN, Appellee From the 229th Judicial District Court, Starr County, Texas Trial Court No. DC-00-304 Honorable Alex W. Gabert, Judge Presiding

Opinion by: Alma L. López, Chief Justice

Concurring opinion by: Phylis J. Speedlin, Justice

Sitting: Alma L. López, Chief Justice

Sarah B. Duncan, Justice, concurring in the judgment

Phylis J. Speedlin, Justice

Delivered and Filed: December 1, 2004

I concur in the judgment only, because I agree with the majority's conclusion that Tagle and Triple R did not make the trial court aware in a timely and plain manner that they were requesting separate damage awards for purposes of evidentiary review. See Harris County v. Smith, 96 S.W.3d 230, 236 (Tex. 2002). Since we do not know what amount the trial court awarded for any of the ten damage elements included in the two million dollar award, a meaningful review of the sufficiency of the evidence is extremely difficult. Greater Houston Transp. Co., Inc. v. Zrubeck, 850 S.W.2d 579, 589 (Tex. App.-Corpus Christi 1993, writ denied). In light of this record and the evidence presented, I agree with the majority's conclusion that the evidence is legally and factually sufficient to support the damage award.

I write separately because of the majority's heavy reliance on City of San Antonio v. Vela, 762 S.W.2d 314 (Tex. App.-San Antonio 1988, writ denied). As Chief Justice Cadena cautioned in his dissent in Vela, no Texas court has ever upheld an award of future medical expenses "where there is no evidence whatsoever concerning the need for future medical attention nor the reasonable cost of such attention." Id. at 323 (Cadena, C.J., dissenting). Texas instead follows the "reasonable probability rule," which in this context simply means that evidence must be presented that damages would "reasonably and probably result from the injury sustained." Fisher v. Coastal Transp. Co., 149 Tex. 224, 230 S.W.2d 522, 523 (Tex. 1950). The injured party seeking recovery of future damages must: "(1) present evidence that, in reasonable probability, it will incur expenses in the future, and (2) prove the probable reasonable amount of the future expenses." MCI Telecomm. Corp. v. Texas Util. Elec. Co., 995 S.W.2d 647, 654-655 (Tex. 1999). Obviously, as Chief Justice Cadena wrote, "testimony regarding future medical expenses cannot be exact and absolute ... any more than any attempt to predict the future can be precise." Vela, 762 S.W.2d at 323 (Cadena, C.J., dissenting). This, however, does not obviate the need for some evidence. Id. If the parties had preserved error and properly presented the issue on appeal, I would be hard pressed to find sufficient evidence in this record to support damages for future medical expenses.

Phylis J. Speedlin, Justice