in Re: Rudolph Automotive, LLC D/B/A Rudolph Mazda and Rudolph Chevrolet, LLC ( 2020 )


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  •                                     COURT OF APPEALS
    EIGHTH DISTRICT OF TEXAS
    EL PASO, TEXAS
    IN RE: RUDOLPH AUTOMOTIVE,                        §
    LLC D/B/A RUDOLPH MAZDA and                                        No. 08-18-00149-CV
    RUDOLPH CHEVROLET, LLC,                           §
    AN ORIGINAL PROCEEDING
    Relators.                             §
    IN MANDAMUS
    §
    §
    §
    DISSENTING OPINION
    Who loses when a trial court grants a motion for new trial after a three-week trial? Well,
    the party that prevailed, or partially prevailed certainly does. But so do the twelve jurors who took
    three weeks out of their life to hear and decide an important dispute. Other litigants that could
    have used that three weeks to have their cases heard are also the losers, as they missed the
    opportunity to utilize valuable court time. And whenever the case is reset, another twelve jurors
    (plus alternates) will have to put their lives on hold for three weeks to possibly decide a gut-
    wrenching case. Moreover, another set of litigants will have to sit on the sidelines waiting their
    turn to try a case. We could add to the list of losers the third-party witnesses who may have to
    testify again, and of course the taxpayers who foot the bill for the court staff and facilities.
    In sum, the cost to society is tangible, and accordingly, our Supreme Court has laid out a
    framework for review whenever a trial court exercises its discretion to grant a new trial. In my
    opinion, under that framework the real-parties-in-interest successfully challenge each of the four
    grounds advanced by the trial judge to set aside the three-week trial in this case. Accordingly, I
    respectfully dissent.
    The Court correctly sets out a statement of the case and the standards for mandamus relief.
    In summary, the trial court’s stated reason must be (1) legally appropriate and (2) specific enough
    to show that the trial court derived its reasons from the facts and circumstances of the case before
    it. In re United Scaffolding, Inc., 
    377 S.W.3d 685
    , 688-89 (Tex. 2012). And if the stated reasons
    are appropriate, we are directed to also determine whether the trial court’s articulated reasons find
    support in the underlying record. In re Toyota Motor Sales, U.S.A., Inc., 
    407 S.W.3d 746
    , 756
    (Tex. 2013). In this case, the trial court granted a new trial based on (1) an apparent conflict in
    the jury findings, (2) its purported reliance on one of our decisions that was later overturned, (3)
    an expert who violated a motion in limine, and (4) alleged inconsistency between the damages
    evidence and the damages findings. I address each in turn.
    Conflict in Jury Findings
    The jury failed to find that Rudolph was negligent in Question Two and Three, but contrary
    to a conditioning instruction, assigned it a percentage of responsibility (10%) in Question Four. I
    agree with Rudolph that any conflict between the answers to those questions was waived when the
    issue was not raised before the trial court discharged the jury, and that in any event, the problem
    has a simple mathematical fix.
    If a trial court intends to grant a new trial based on error occurring during trial, the error
    must have been the kind that would be reversible if appealed. That was the case in In re Toyota,
    2
    where the trial court granted a new trial because it thought Toyota violated a limine order excluding
    certain testimony. In re Toyota Motor Sales, U.S.A., Inc., 
    407 S.W.3d 746
    , 749 (Tex. 2013) (orig.
    proceeding). Yet the Texas Supreme Court held that the record did not support the trial court’s
    new trial order because the plaintiffs had not preserved the complaint at trial.
    Id. at 760
    (“where,
    as here, the party that requested the limine order itself introduces the evidence into the record, and
    then fails to immediately object, ask for a curative or limiting instruction or, alternatively, move
    for mistrial, the party waives any subsequent alleged error on the point.”). And here, no party
    objected that there was a conflict in the jury findings before the jury was discharged.
    The majority blunts this point by holding that a post-trial motion can also preserve error,
    citing a plurality from USAA Tex. Lloyds Co. v. Menchaca, 
    545 S.W.3d 479
    (Tex. 2018). In
    Menchaca, four Justices agreed that a party should object to conflicting answers before the trial
    court dismisses the jury, but they went on to write that “[t]he absence of such an objection,
    however, should not prohibit us from reaching the issue of irreconcilable conflicts in jury
    findings.”
    Id. at 526
    (C.J. Hecht, J. Green, J. Guzman, and J. Brown, dissenting). Three Justices,
    however, opined that irreconcilable jury responses do not constitute fundamental error, and
    concluded that an objection was required prior to the jury’s discharge.
    Id. at 510–20
    (J. Boyd, J.
    Lehrmann, and J. Devine, plurality op.). Nonetheless, those same three Justices agreed that the
    case should be remanded for a new trial in the interest of justice, a power unique to the Texas
    Supreme Court, because of prior confusion in the error preservation requirements for irreconcilable
    jury responses.
    Id. at 520-21;
    see also TEX.R.APP.P. 60.3 (authorizing Texas Supreme Court to
    remand in interest of justice).
    I would hew to the basic proposition that any error in conflicting jury findings needs to be
    raised while the jury is still present to resolve the conflict, and that post-trial motions do not
    3
    preserve error. See Critical Path Resources, Inc. v. Huntsman Intl., LLC, No. 09-17-00497-CV,
    
    2020 WL 1291327
    , at *17 n.66 (Tex.App.--Beaumont Mar. 19, 2020, no pet.) (mem. op.) (holding
    under Menchaca that a post-verdict motion failed to preserve right to complain about any alleged
    conflict in jury findings). That is how Rule 295 reads. See TEX.R.CIV.P. 295 (if the “answers to
    the [jury] questions are in conflict, the court shall in writing instruct the jury in open court of the
    nature of the incompleteness, unresponsiveness, or conflict, provide the jury such additional
    instructions as may be proper, and retire the jury for further deliberations.”). That is closest to our
    prior precedent. Rhey v. Redic, 
    408 S.W.3d 440
    , 464 (Tex.App.--El Paso 2013, no pet.). And that
    is in accord with the requirement for a “timely” objection which is an express requirement of Rule
    33.1. TEX.R.APP.P. 33.1 (prerequisite for appeal requires a “a timely request, objection, or
    motion”). By raising the issue in a motion for new trial, the real-parties-in-interest leave the trial
    judge with only one remedy—declare the entire trial a nullity and start anew. Following Rule 295,
    however, would have at least provided the opportunity to fix any conflict between Question 2, 3,
    and 4. Borrowing from our criminal jurisprudence, the key to error preservation is for a litigant
    “to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly
    enough for the judge to understand him at a time when the trial court is in a proper position to do
    something about it.” Lankston v. State, 
    827 S.W.2d 907
    , 909 (Tex.Crim.App. 1992) (emphasis
    supplied). The difference in possible remedies makes preservation through a motion for new trial
    a poor cousin to fixing the problem while the jury is still in the box. For that reason, I decline to
    join the majority approach of allowing for post-jury-discharge objections to conflicting findings.
    But even beyond that preservation issue, I disagree that the conflict here is fatal and cannot
    be harmonized. This is not the first time that a jury has answered the negligence inquiry “no” but
    assigned a percentage of fault to the same party. See Beltran v. Brookshire Grocery Co., 358
    
    4 S.W.3d 263
    , 269 (Tex.App.--Dallas 2011, pet. denied) (collecting cases). And courts facing that
    predicament have concluded that “[i]ssues establishing or negating liability control over the issue
    which apportions, rather than establishes, negligence.” Id.; see also Garza v. Waco Scaffold and
    Shoring Co., 
    576 S.W.2d 442
    , 446 (Tex.App.--El Paso 1978, writ ref’d n.r.e.) (“the specific finding
    directed toward the liability aspect of the verdict controls over the general finding of comparative
    negligence”). And when faced with that prospect here, the trial court could still formulate a verdict
    by proportionally distributing the erroneous 10% finding over the three remaining percentages of
    responsibility. See 
    Garza, 576 S.W.2d at 446
    ; 
    Beltran, 358 S.W.3d at 269
    ; Ingles v. Cohen, 
    543 S.W.2d 455
    , 456–57 (Tex.App.--Waco 1976, writ ref’d n.r.e.).            The real-parties-in-interest
    discount these cases because they predate broad form submission. But whether a jury answered a
    series of specific negligence questions “no” or one broad form question “no,” and then answered
    an apportionment question inconsistently seems a distinction without a difference.
    The Painter Decision
    The trial court also based its new trial motion on the change in law when our decision in
    Painter v. Amerimex was overturned by the Texas Supreme Court just as the trial ended. Painter
    v. Amerimex Drilling I, Ltd., 
    511 S.W.3d 700
    (Tex.App.--El Paso 2015), rev’d, 
    561 S.W.3d 125
    (Tex. 2018). In Painter, the crew leader of an oil drilling rig drove his crew from a remote drilling
    site to company housing in a nearby town. The crew leader was in his personal vehicle and work
    had finished for the day. While en route, he collided with another vehicle and the resulting accident
    killed and injured several crew members. The victims sued the crew leader and his employer.
    The employer obtained a summary judgment based on the argument that the employer
    could not be vicariously liable for the crew leader’s conduct unless the employer controlled his
    actions at the time of the accident.
    Id. at 709.
    Attempting to reconcile conflicting authority on
    5
    that issue, we agreed with the trial court and upheld the summary 
    judgment. 511 S.W.3d at 710
    -
    11, citing, e.g., London v. Texas Power & Light Co. 
    620 S.W.2d 718
    , 719-20 (Tex.App.--Dallas
    1981, no writ) (“The test of a master’s liability for the negligent acts of his servant is whether at
    the time and occasion in question, the master has the right and power to direct and control the
    servant in the performance of the causal act or omission at the very instance of its occurrence.”)
    (emphasis supplied) and J & C Drilling Co. v. Salaiz, 
    866 S.W.2d 632
    , 636 (Tex.App.--San
    Antonio 1993, no pet.) (“When the employer does not require any particular route, the employee
    is not engaged in the furtherance of the employer’s business.”).
    The Texas Supreme Court disagreed with this Court, and some of the cases we relied on,
    instead holding that the relevant inquiry to impose vicarious liability was whether at the time of
    the negligent conduct, “the worker (1) was an employee and (2) was acting in the course and scope
    of his employment.” Painter 
    II, 561 S.W.3d at 131
    , 132. The element of control is bound up in
    the first question—employment status—and not the course and scope question.
    Id. at 132
    (“Accordingly, we disagree with those courts of appeals that have tied the right-to-control analysis
    to the course-and-scope element of a vicarious-liability claim.”). Moreover, that control should
    not be evaluated on a task-by-task basis.
    Id. at 138.
    And the course and scope question “hinges
    on an objective assessment of whether the employee was doing his job when he committed a
    tortious act. . . . The employer’s right to control the work, having already been determined in
    establishing the employer-employee relationship, is not part of this analysis.”
    Id. at 132
    -33. The
    Supreme Court remanded the case because the summary judgment record revealed factual disputes
    over whether the crew leader was in the course and scope of his employment by driving the crew
    to its housing.
    Id. at 139.
    In this case, the trial court granted a new trial here in part because:
    6
    [T]he Texas Supreme Court decision in Painter v. Ameritex [sic] rendered on April
    213,2018, [sic] the day of this Jury Verdict, was important law that affected the
    earlier decision s [sic] of this Court on motions filed by the parties, the evidence
    presented at trial and the charge given to the Jury. Based on the Painter opinion
    and other relevant decisions and authority as set forth in Plaintiff s Motion for
    Judgment NOV, it appears to this Court that it needs to reconsider whether Irma
    Vanessa Villegas and Christian Ruiz were injured in the course of employment as
    a matter of law which would make Plaintiff s claim a non-subscriber negligence
    case under 406.33 [sic] of the Texas Labor Code, and combined with the evidence
    admitted at trial, find negligence as a matter of law, thereby leaving only the issue
    of damages for determination.
    I agree with Rudolph that the trial court’s claim that Painter affected its earlier decisions
    on (1) pending motions, (2) the evidence presented at trial, and (3) the jury charge is either
    conclusory or is not supported by the record. The only motions that the parties point to were
    competing motions for summary judgment on the course and scope issue. Rudolph argued for a
    summary judgment in part based on our Painter decision (before it was reversed) but the trial court
    denied that motion. The trial court also denied the real-parties-in-interest’s motion for summary
    judgment, but I fail to see how Painter II would have changed that ruling. In Painter II, after all,
    the court remanded the case for trial based on the existence of a fact issue. Consistent with that
    outcome, the trial court also submitted a course and scope question to the jury.
    The majority’s elongated discussion of Painter fails to point to a single evidentiary ruling,
    or other trial ruling colored by Painter I. Nor have the parties identified any defect in the charge
    occasioned by the trial court’s reliance on Painter I. The accident at issue in Painter occurred well
    away from the worksite, and parties there argued the “coming and going” rule and cases applying
    that 
    rule. 511 S.W.3d at 706
    .1 The accident here occurred in Rudolph’s parking lot. And the
    parties disputed whether the “access doctrine” which is an exception to the coming and going rule
    1
    And a careful examination of the briefing when the case was before our Court would show that the plaintiffs primarily
    relied on a claimed exception to the coming and going rule carved out for travel to and from drilling rigs in remote
    
    locations. 511 S.W.2d at 706
    , citing, e.g., Johnson v. Pacific Employers Indemnity Co., 
    439 S.W.2d 824
    (Tex.1969).
    None of those cases, however, would have any application to the accident here.
    7
    would apply. That doctrine allows employees to recover workers’ compensation benefits if they
    are “injured while going to or from work, if on routes designated by their employers and at
    locations near where they work, . . . ‘where such access route or area is so closely related to the
    employer’s premises as to be fairly treated as a part of the premises.’” OCI Beaumont LLC v.
    Barajas, 
    520 S.W.3d 83
    , 85 n.1 (Tex.App.--Beaumont 2017, no pet.), quoting Tex. Comp. Ins. Co.
    v. Matthews, 
    519 S.W.2d 630
    , 631 (Tex. 1974). Moreover, the trial court actually included—at
    the real-parties-in interest’s request—an access doctrine instruction in the charge. Neither the trial
    court, nor the real-parties-in-interest articulate any additional or different charge language that
    would have been included had Painter II been released before, rather than after trial.
    At most, the trial court states it might conclude that Irma Vanessa Villegas and Christian
    Ruiz were in the course and scope of employment as a matter of law based on the Texas Supreme
    Court’s decision in Painter. Setting aside whether that is even correct, nothing would have
    prevented the trial court from granting that relief post-trial based on the arguments and relief
    sought in “Plaintiff’s Motion for Judgment Notwithstanding the Verdict and to Enter Judgment.”
    Our rules specifically allow a party to file motion for judgment notwithstanding the verdict, which
    the real-parties-in-interest did here. TEX.R.CIV.P. 301. But rather than grant that motion, the trial
    court set aside the results of a three-week jury trial because it might grant a JNOV or equivalent
    motion in the future. I would find that to be an abuse of discretion. If the trial court believes the
    law places certain of these actors in the course and scope of employment as a matter of law, the
    court should simply grant the JNOV and let that ruling be tested on appeal.2
    2
    Nothing written here should be interpreted as suggesting that I would agree or disagree with such a ruling. That
    issue is not before us. I only conclude that a trial court cannot set aside a jury’s verdict in favor of a new trial because
    the court might grant one party relief as a matter of law, particularly when a motion seeking such relief is already teed
    up before the trial court.
    8
    The Expert’s Testimony
    As one of the last trial witnesses, Rudolph put on an expert toxicologist, Dr. Gary Wimbish,
    to opine in part that the alcohol that Ruiz drank would not have affected him on the night of the
    accident. Ruiz had a blood alcohol content of .02. Ms. Villegas had a BAC of .04. As the majority
    sets out, when Wimbish was cross-examined by plaintiffs’ counsel, he was asked to agree that all
    the alcohol that Villegas had that day was provided by the Rudolph. He responded that “[m]y
    information is a bit different from that.” Villegas’s counsel then asked him what other information
    he had. He then relayed that Villegas was reported to have imbibed alcohol she brought to work.
    And when Villegas’s counsel continued with that line of questioning—asking where he got that
    information from—Dr. Wimbish gratuitously added that he had seen clinical information that Ms.
    Villegas had a problem with alcohol such that she would wake up in the middle of the night and
    need to drink to get back to sleep. At that point, Villegas’s counsel asked to approach the bench
    and moved for a mistrial. The trial court denied the mistrial (noting that Villegas had opened the
    door) but then formulated this specific instruction that each juror individually had to agree that
    they would abide by:
    COURT: You heard testimony from the witness that is not credible, is unreliable,
    and not evidence in this case. You are instructed to disregard the witness’s
    testimony – Dr. Wimbish’s testimony – on all evidence concerning Vanessa
    Villegas’ prior use of alcohol before the date in incident – before this incident.
    Do you understand that, ladies and gentlemen?
    THE JURORS: Yes, sir.
    I could certainly agree that the injection of some of the drinking testimony was error. The
    specific reference to a drinking problem and that Villegas needed to drink to go to sleep was not
    responsive to the question asked. The bench conference also suggests that the information was
    based on double, if not triple hearsay. The injection of these matters, accordingly, could be a valid
    9
    ground for ordering a new trial.
    But for an error to serve as a valid basis for a new trial, it must be harmful which we define
    as probably causing the rendition of an improper verdict. TEX.R.APP.P. 44.1(a); Diamond
    Offshore Servs. v. Williams, 
    542 S.W.3d 539
    , 551 (Tex. 2018); Loera v. Fuentes, 
    511 S.W.3d 761
    ,
    776 (Tex.App.--El Paso 2016, no pet.). And that is where I get stumped. The trial court pointedly
    told the jury that the evidence was unreliable; each juror individually agreed to abide by that
    instruction. We generally presume that jurors will follow a court’s instructions, and only a narrow
    class of statements defy our ability to instruct jurors. See Living Centers of Texas, Inc. v. Penalver,
    
    256 S.W.3d 678
    , 680 (Tex. 2008) (“Typically, retraction of the argument or instruction from the
    court can cure any probable harm, but in rare instances the probable harm or prejudice cannot be
    cured.”). Those rare circumstances include appeals to racial prejudice, unsupported and extreme
    attacks on opposing parties and witnesses, and accusing without evidence the opposing parties of
    witness manipulation or evidence tampering.
    Id. at 681
    (collecting cases). The statement here
    falls somewhere outside that line of cases.
    Nor does the record support that the jury violated the trial court’s instruction. On liability,
    the jury found Villegas (who had more to drink than Ruiz) slightly less at fault than Ruiz. The
    accident occurred when Ruiz, who had just backed out of a parking spot, put his truck into drive
    and drove into Villegas who was walking in front of his truck. The jury could have concluded that
    both driver and pedestrian failed to keep a proper look-out. Stated otherwise, there is nothing
    surprising about the finding of fault, or the apportionment of liability. Nor does a $3.87 million
    verdict call out that the jury disregarded the damages testimony because of the single isolated
    statement of the witness.
    10
    The Damages Findings
    The majority does not reach the fourth basis for the trial court’s order—the amount of non-
    economic damages awarded. Because I would find each of the stated reasons for the new trial
    improper, I briefly address the issue.
    The jury awarded a total of $4.02 million in damages, $3.87 million to Villegas (who was
    hit by the truck) and $150,000 to Juarez (Villegas’s adult daughter). The jury awarded Villegas
    these specific sums:
    Medical care in the past:                       $630,000
    Medical care in the future:                     $2,500,000
    Physical pain and suffering in the past:        $25,000
    Physical pain and suffering in the future:      $25,000
    Physical impairment in the past:                $25,000
    Physical impairment in the future:              $25,000
    Past disfigurement:                             $0
    Future disfigurement:                           $200,000
    Loss of past earning capacity:                  $150,000
    Loss of future earning capacity:                $240,000
    Past mental anguish:                            $25,000
    Future mental anguish:                          $25,000
    The awards for Juarez are as follows:
    Past household services:                        $0
    Future household services:                      $150,000
    Past loss of parental consortium:               $0
    11
    Future loss of parental consortium:           $0
    The trial court also granted a new trial based on the jury’s answers to eight of the damage
    categories, stating as follows:
    As an additional and independent basis for new trial, the Court finds that the
    determination of Zero (-0-) Damages for past disfigurement of Irma Vanessa
    Villegas . . . as well as Zero (-0-) Damages for daughter Andrea Juarez for Past
    household services and for Past and future loss of parental consortium completely
    ignore the undisputed facts, and the other damages [for past and future physical
    pain and physical impairment] fix an amount neither authorized nor supported by
    the evidence and is contrary to the great weight of the evidence. (Internal reference
    to the damage question numbers omitted).
    The trial court further stated, and I accept as true, that the “undisputed evidence proved that Irma
    Vanessa Villegas suffered permanent irreversible traumatic brain injury and was paralyzed on one
    side of her body[.]” The trial court summarized the trial evidence as including “controverted
    evidence of constant daily pain” and her “impairment in virtually every movement.” Villegas was
    confined to a bed and wheelchair, and she needed round-the-clock assistance. She suffered
    “permanent damage to her mental faculties” such that at times she did not know her daughter, her
    grandchildren, and her sisters.
    Rule 320 expressly provides that “[n]ew trials may be granted when the damages are
    manifestly too small or too large.” TEX.R.CIV.P. 320. And our high court has stated “If the jury’s
    failure to award damages or the amount of damages awarded is so against the great weight and
    preponderance of the evidence as to be manifestly unjust, shock the conscious, or clearly
    demonstrate bias, then a new trial would be required.” Golden Eagle Archery, Inc. v. Jackson, 
    116 S.W.3d 757
    , 773 (Tex. 2003).
    But any view of damages is also tempered by the jury’s wide discretion in awarding non-
    economic damages. Sanchez v. Balderrama, 
    546 S.W.3d 230
    , 237 (Tex.App.--El Paso 2017, no
    pet.) (“Because there are no objective guidelines to assess the monetary equivalent to [mental
    12
    anguish or pain and suffering], the jury is given broad discretion in awarding an amount of
    damages it determines appropriate.”). This is because the “process of awarding damages for
    amorphous, discretionary injuries such as mental anguish or pain and suffering is inherently
    difficult because the alleged injury is a subjective, unliquidated, nonpecuniary loss.”
    Id. We recently quoted
    a prior sister court’s view that it is the jury’s province “to resolve the speculative
    matters of pain and suffering, future pain and suffering, future disfigurement, and future physical
    impairment, and set the amount of damages attributable thereto.”
    Id., quoting Duron v.
    Merritt,
    
    846 S.W.2d 23
    , 26 (Tex.App.--Corpus Christi 1992, no writ).
    We also must acknowledge the possible overlap between the damage categories here--
    physical impairment, physical pain and suffering, disfigurement, and pain and mental anguish.
    See Golden Eagle Archery, 
    Inc., 116 S.W.3d at 771
    (noting that physical impairment, physical
    pain and suffering, disfigurement, and mental anguish can encompass the same loss). None of
    these terms were defined by the charge. So, while we assume the jury followed the instruction not
    to award the same damages in more than one damage category, we must look to all the awards in
    the several categories to determine if the jury failed to properly award damages.
    Id. The trial court
    here first focused on the failure of the jury to award any sum for past
    disfigurement (while awarding a substantial sum for future disfigurement). The accident resulted
    in a portion of Villegas’s skull being removed, leaving an indentation on her forehead and other
    scarring from one side of her skull to the other. There was some testimony that she bemoaned the
    misshapenness of her head and was given to frequent crying. “Disfigurement has been defined as
    that which impairs the appearance of a person, or that which renders unsightly, misshapen or
    imperfect, or deforms in some manner.” Doctor v. Pardue, 
    186 S.W.3d 4
    , 18 (Tex.App.--Houston
    [1st Dist.] 2006, pet. denied). “The matter of future disfigurement is necessarily speculative and
    13
    there is no mathematical yard stick by which one can measure damages for it.” Mauricio v.
    Cervantes, No. 04-16-00260-CV, 
    2017 WL 2791324
    , at *3 (Tex.App.--San Antonio June 28,
    2017, no pet.) (mem. op.).
    Rudolph postulates that the jury awarded nothing in the past for disfigurement because
    Villegas as of the time of trial did not perceive her own change in appearance. It suggests that the
    large future disfigurement award evidences the jury’s belief she would later improve and come to
    learn of her disfigurement, and only then suffer the loss.3 I am unpersuaded by that specific
    argument. But I agree that the compensable aspect of disfigurement is how it affected Villegas,
    which surely encompasses her mental suffering from the injury. It could also encompass the loss
    of enjoyment of life that is part and parcel of physical impairment. See Golden Eagle Archery,
    
    Inc., 116 S.W.3d at 772
    . That overlap necessitates that a court also consider any awards for mental
    anguish, pain and suffering, and physical impairment in deciding if the jury truly ignored the
    disfigurement. And the jury did collectively award $75,000 in those categories to Villegas.
    Accordingly, it is incorrect to conclude the jury failed to consider at all the disfigurement in its
    damage calculations.4
    The trial court also focused on the lack of awards for loss of parental consortium. The
    relationship here was between an adult child and parent. Juarez presented testimony of her belief
    as to the destruction of that relationship. Relators point out, however, that her credibility was
    challenged through cross examination on at least two matters where the jury might have concluded
    that Juarez was untruthful or prone to embellishment. It of course is not our role to decide whether
    3
    Tragically, during the pendency of this appeal, the real-parties-in-interest informed us that Villegas has passed away.
    4
    This overlap also distinguishes the principal case that the real-parties-in-interest rely on, Doctor v. Pardue. In that
    case, the jury awarded no sums for any of the past categories of non-pecuniary loss, but substantial sums for all the
    future 
    awards. 186 S.W.3d at 18
    .
    14
    she was truthful or not—that is reserved for the jury. Benoit v. Wilson, 
    239 S.W.2d 792
    , 796 (Tex.
    1951) (“The jury, not the court, is the fact finding body. The court is never permitted to substitute
    its findings and conclusions for that of the jury. The jury is the exclusive judge of the facts proved,
    the credibility of the witnesses and the weight to be given to their testimony.”). Accordingly, the
    jury was entitled to disbelieve her testimony and not award consortium damages. Perez v. Lopez,
    
    74 S.W.3d 60
    , 66 (Tex.App.--El Paso 2002, no pet.) (in upholding award of no damages for loss
    of consortium “it was [the jury’s] function to accept or reject any, part, or all of the witnesses’s
    testimony . . . .”).
    The trial court also found fault with the jury’s answer to the loss of household services
    question. An award for household services compensates a family member for the loss of household
    services that the injured party would have provided the family member but for the injury. See
    COMM. ON PATTERN JURY CHARGES, STATE BAR OF TEX., TEXAS PATTERN JURY CHARGES: GEN.
    NEGLIGENCE, PJC 28.4 (2016). The jury question here, however asked for the “[r]easonable value
    of household services and personal care in the past provided by Andrea Juarez for the benefit of
    Irma Vanessa Villegas.” There was no evidence that Juarez provided household services to
    Villegas (as opposed to Villegas providing services to Juarez). While that may have been a
    typographical error as the real-parties-in-interest suggest, it was the charge given and which the
    jury answered.
    The balance of the trial court’s rationale is that the series of $25,000 awards for past and
    future physical impairment, and past and future pain and suffering are “neither authorized nor
    supported by the evidence and is contrary to the great weight of the evidence.” It is unclear if the
    rationale here is grounded solely in a factual sufficiency challenge or includes legal sufficiency as
    well. See In re Bent, 
    487 S.W.3d 170
    , 179 (Tex. 2016) (noting trial court’s muddled legal- and
    15
    factual-sufficiency evaluation of the evidence). As a legal insufficiency matter, the argument fails
    because the evidence could never establish a particular sum for a non-pecuniary award as a matter
    of law. As a factual insufficiency challenge, the order fails to explain how the particular
    amounts—given the jury’s wide latitude, shock the conscious or point to an award based on some
    bias.
    For these reasons, I respectfully dissent.
    JEFF ALLEY, Chief Justice
    December 30, 2020
    Before Alley, C.J., Rodriguez, and Palafox, JJ.
    16