Richard Fiske v. Debbie Fiske

  Opinion issued August 19, 2004

In The

Court of Appeals

For The

First District of Texas

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NO. 01-03-00048-CV

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RICHARD FISKE, Appellant

V.

DEBBIE FISKE, Appellee

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On Appeal from County Court at Law No. 2

Brazos County, Texas

Trial Court Cause No. 02-001638-CV

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MEMORANDUM OPINION

          Appellant, Richard Fiske, challenges the trial court’s judgment in favor of appellee, his wife, Debbie Fiske, on her personal injury claim. In five points of error, Richard contends that the trial court abused its discretion when it denied his motion for new trial because there was insufficient evidence of damages, the judgment nunc pro tunc was signed after he filed an answer, and he satisfied the Craddock test. Richard further contends that the trial court abused its discretion when it made erroneous findings of fact and conclusions of law and erred when it overruled his request for a remittitur. We affirm.

Background

          On August 14, 2002, Debbie filed suit against Richard for personal injury claims arising from an automobile accident in which Debbie had been a passenger in a car driven by Richard. Richard was served with process on August 19, 2002, and his answer was due September 9, 2002. On October 7, 2002, Debbie obtained a default judgment against Richard for $50,000. Richard subsequently filed an answer, a “Motion for New Trial and to Set Aside Interlocutory Default Judgment,” and a request for findings of fact and conclusions of law. The trial court overruled Richard’s motion. Motion for New Trial

          In his first three points of error, Richard contends that the trial court abused its discretion when it denied his motion for new trial.

          The trial court’s decision to overrule a motion for new trial is subject to review for abuse of discretion. Old Republic Ins. Co. v. Scott, 873 S.W.2d 381, 382 (Tex. 1994); Cont’l Cas. Co. v. Hartford Ins. ex rel. Blue Line Promotions Inc., 74 S.W.3d 432, 434-35 (Tex. App.—Houston [1st Dist.] 2002, no pet.).

Sufficiency of the Evidence on Damages

          In his first point of error, Richard contends that the trial court abused its discretion when it denied his motion for new trial because the evidence on damages was legally and factually insufficient.

          When reviewing a legal sufficiency challenge, we review the evidence in a light that tends to support the finding of the disputed facts, and we disregard all evidence and inferences to the contrary. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001); Ned v. E.J. Turner & Co., Inc., 11 S.W.3d 407, 408 (Tex. App.—Houston [1st Dist.] 2000, pet. denied). If there is more than a scintilla of evidence to support the finding, we must uphold it. Formosa Plastics Corp. USA v. Presidio Eng’rs, 960 S.W.2d 41, 48 (Tex. 1998). “When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.” Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). However, if the evidence supplies some reasonable basis for differing conclusions by reasonable minds as to the existence of a vital fact, then it is considered some evidence. Id.

          In reviewing a factual sufficiency point, we consider, weigh, and examine all the evidence presented at trial. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). We set aside a finding based on factual insufficiency only if the finding is so against the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Minucci v. Sogevalor, S.A., 14 S.W.3d 790, 794 (Tex. App.—Houston [1st Dist.] 2000, no pet.).

          In a bench trial, the trial court, as the fact finder, is the sole judge of the credibility of the witnesses. Munters Corp. v. Swissco-Young Indus., Inc., 100 S.W.3d 292, 296-97 (Tex. App.—Houston [1st Dist.] 2002, pet. dism’d). The judge may take into consideration all of the facts and surrounding circumstances in connection with the testimony of each witness and accept or reject all or any part of that testimony. Id.

          Here, Richard argues that the evidence was legally and factually insufficient concerning the following elements of damages: (1) physical pain, (2) mental anguish, (3) physical impairment, (4) disfigurement, and (5) future medical expenses. Debbie concedes that the evidence was insufficient to support an award of future medical expenses and disfigurement. However, she argues that there is no evidence that the trial court relied upon these elements of damages in connection with its judgment and that there was sufficient evidence presented to support the trial court’s award based on the remaining grounds of damages. Debbie’s original petition sought past and future damages for medical expenses, physical pain and suffering, mental anguish, physical impairment, disfigurement, and future earning capacity. The trial court awarded a lump sum without designating an amount attributable to each category upon which Debbie sought damages. Generally, when a trial court does not itemize the damages awarded in a default judgment, it is impossible to determine what portion of the damages was ascribed to each ground of recovery claimed by the plaintiff. See K-Mart Apparel Fashions Corp. v. Ramsey, 695 S.W.2d 243, 247 (Tex. App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.). Thus, the award will be upheld as long as there was sufficient evidence presented concerning any of the categories of damages sought. See id.

          Physical Pain

          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, and nonpecuniary loss. Dollison v. Hayes, 79 S.W.3d 246, 249 (Tex. App.—Texarkana 2002, no pet.). Matters of pain and suffering are necessarily speculative, and it is within the province of the fact finder to set the amount of such damages. Rosenboom Mach. & Tool, Inc. v. Machala, 995 S.W.2d 817, 829 (Tex. App.—Houston [1st Dist.] 1999, pet. denied).

           Debbie put on evidence of the extent of her injuries and amount of medical bills, which totaled $6,739.40. Debbie testified that, as a result of the accident, she suffered a broken leg, two broken ribs, abrasions on her forehead, and bruises on the left side of her face. She testified that she still has “problems” with the back of her neck and that, “physical-fitness-wise,” she is “limited.” She also testified that she endured pain and suffering. Such evidence was legally and factually sufficient to support the trial court’s finding of damages for physical pain.   

          Mental Anguish

          To survive a legal sufficiency challenge, a plaintiff must present direct evidence of the nature, duration, and severity of his mental anguish, which establishes a substantial disruption in his daily routine. Latham v. Castillo, 972 S.W.2d 66, 69–70 (Tex. 1998). If there is no such direct evidence, we must apply traditional no evidence standards to determine whether the record reveals any evidence of a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger to support an award of mental anguish damages. Id. at 70. Because an exact evaluation of mental anguish is impossible, there must be some discretion given in finding mental anguish damages that would fairly and reasonably compensate the plaintiff for her loss. See Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996). Texas authorizes mental anguish damages as an element of recoverable damages in virtually all personal injury actions where a defendant’s conduct causes serious bodily injury. See City of Tyler v. Likes, 962 S.W.2d 489, 495 (Tex. 1997). Where a serious bodily injury has been inflicted, some degree of physical and mental suffering is the necessary result. Id.

          Debbie testified that she endured mental anguish as a result of the accident. She testified that she sustained a broken leg and broken ribs and that she saw a neurologist. She testified that she had continuing problems with the back of her neck and that she had developed a fear of driving after the accident. Such testimony is legally and factually sufficient to justify an award of mental anguish damages. See Weidner v. Sanchez, 14 S.W.3d 353, 367 (Tex. App.—Houston [14th Dist.] 2000, no pet.). Further, Debbie presented evidence that, following the accident, she suffered from depression. Evidence of depression has been found to be legally and factually sufficient evidence of mental anguish damages because it constitutes more than mere worry, anxiety, vexation, embarrassment or anger. Comstock Silversmiths, Inc. v. Carey, 894 S.W.2d 56, 57–58 (Tex. App.—San Antonio 1995, no writ).

          Physical Impairment

          Physical impairment is an element of damages that extends beyond loss of earning capacity and pain and suffering to the extent that it produces a separate loss that is substantial or extremely disabling. Robinson v. Minick, 755 S.W.2d 890, 893 (Tex. App.—Houston [1st Dist.] 1988, writ denied). Therefore, even proof that one is entitled to compensatory damages for pain and suffering, or for lost wages, does not automatically entitle one to compensation for physical impairment. Dollison, 79 S.W.3d at 253. A party claiming such damages bears the burden of proving a compensable injury. Id.

          At the default judgment hearing, Debbie stated that “my limitation on what I can do physical-fitness-wise is kind of hard. I have to avoid certain things. And I’m accustomed to working out quite a bit . . . . I teach water aerobics . . . . So I still have problems with my neck and my shoulders.” Debbie also testified that she had experienced a fear of driving after the accident. This testimony does not amount to evidence of physical impairment because the alleged impairment did not extend beyond pain and suffering to the extent that it produced a separate, substantial, or extremely disabling loss. See Robinson, 755 S.W.2d at 893.

          However, where there is a lack of evidence regarding a particular type of damages, but no indication that the trial court made any award for that type of damages, we will assume that the trial court disregarded those damages in making its award. Ramsey, 695 S.W.2d at 247.

Medical Expenses

          Richard argues that there was no evidence that the medical expenses were reasonable and necessary.

          Richard requested findings of fact concerning the reasonableness and necessity of Debbie’s medical expenses, but the trial court did not make such findings. When a trial court does not enter findings of fact after a bench trial, we may uphold the judgment on any legal theory supported by the pleadings and the evidence. Fair Deal Auto Sales v. Brantley, 24 S.W.3d 543, 546 (Tex. App.—Houston [1st Dist.] 2000, no pet.).

          A plaintiff may prove that her medical expenses are reasonable and necessary either by presenting expert testimony or by submitting affidavits in compliance with section 18.001 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 18.001 (Vernon Supp. 2004); Rodriguez-Narrea v. Ridinger, 19 S.W.3d 531, 532 (Tex. App.—Fort Worth 2000, no pet.). Proof of the amounts charged or paid for medical treatment is not proof of the reasonableness of such costs. Rodriguez-Narrea, 19 S.W.3d at 532.

          Here, Debbie did not comply with section 18.001 and did not prove up the expenses through expert testimony; therefore, there was no evidence of the necessity or reasonableness of her medical expenses. The fact that her testimony was adduced in a default judgment hearing did not relieve Debbie of her burden to prove the reasonableness and necessity of her medical expenses. See Jackson v. Gutierrez, 77 S.W.3d 898, 902-03 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (in restricted appeal, holding that failure of default judgment plaintiff to present evidence of reasonableness and necessity of medical expenses required reversal of medical expenses award). However, because the trial court did not specify the type of damages upon which it based its award, we must assume that the trial court disregarded medical expenses in making its award. See Ramsey, 695 S.W.2d at 247.           We conclude that the evidence was legally and factually insufficient to support an award of damages to Debbie for physical impairment and past medical expenses, but was legally and factually sufficient to support an award of damages for Debbie’s physical pain and mental anguish. As noted above, we will assume that the trial court disregarded physical impairment and past medical expenses in making its award. We hold that the evidence was legally and factually sufficient to support the trial court’s award of $50,000 to Debbie for her physical pain and mental anguish sustained as a result of the accident. See, e.g., Popkowsi v. Gramza, 671 S.W.2d 915, 919 (Tex. App.—Houston [1st Dist.] 1984, no writ) (upholding default judgment award of $50,000 based on evidence that plaintiff suffered muscle damage, dizzy spells, headaches, and permanent scarring as passenger in one vehicle accident); Dawson v. Briggs, 107 S.W.3d 739, 754 (Tex. App.—Fort Worth 2003, no pet.) (upholding default judgment award for $50,000 for pain and suffering based on evidence that plaintiff suffered from pain, swelling, and popping in her jaw, which she alleged was caused by automobile accident). 

          We overrule Richard’s first point of error.              

Nunc Pro Tunc

          In his second point of error, Richard contends that the trial court abused its discretion in denying his motion for new trial and in failing to set aside the default judgment “on the legal ground that the judgment awards $50,000 and the court subsequently granted Debbie Fiske’s motion for judgment Nunc Pro Tunc after an answer had been filed by Richard Fiske.” Specifically, Richard argues that the trial court abused its discretion in granting Debbie’s motion for entry of judgment nunc pro tunc based on her request to change the amount of the damages awarded, because such a change is indicative of a judicial error rather than a clerical error.

          A judgment nunc pro tunc may be entered, after a trial court’s plenary power has expired, to correct clerical errors in a judgment or order. See Tex. R. Civ. P. 306a(6), 316; In re Taylor, 113 S.W.3d 385, 393 (Tex. App.—Houston [1st Dist.] 2003, orig. proceeding). Determining whether an error in a judgment is a judicial or clerical error is a question of law. Finlay v. Jones, 435 S.W.2d 136, 138 (Tex. 1968). A clerical error is a mistake or omission preventing a judgment, as entered in the official record, from accurately reflecting the judgment as it was actually rendered. Universal Underwriters Ins. Co. v. Ferguson, 471 S.W.2d 28, 29-30 (Tex. 1971). For example, a judgment nunc pro tunc may be entered to correctly reflect the date on which an order was signed if the original date is shown to be incorrect. In re Taylor, 113 S.W.3d at 393. A judicial error, however, is an error arising from a mistake of law or fact that requires judicial reasoning or determination to correct. Butler v. Cont’l Airlines, Inc., 31 S.W.3d 642, 647 (Tex. App.—Houston [1st Dist.] 2000, pet. denied).

           Here, at the default judgment hearing, the trial court asked whether “the assumption is that $50,000 is the entire set amount of damages for the entire occurrence?” The trial court then signed a judgment awarding “$50,00.00” and subsequently entered a judgment nunc pro tunc to correctly read “$50,000.00.” Because the mistake in the trial court’s original judgment was merely a typographical error, rather than a material change in the amount of the judgment, we conclude that this error was a clerical error and that the correction did not result from judicial reasoning or determination. See Burgess v. Burgess, 834 S.W.2d 538, 540 (Tex. App.—Houston [1st Dist.] 1992, no writ) (stating that trial judge has authority to correct mistakes and misrecitals in judgment, such as failing to properly reflect judgment as rendered, as long as error to be corrected is clerical rather than judicial).          We overrule Richard’s second point of error.

Craddock Test

          In his third point of error, Richard contends that the trial court abused its discretion in denying his motion for new trial and in failing to set aside the default judgment because he proved all three elements of the Craddock test.

          A defendant challenging a default judgment under Craddock must show that (1) the defendant’s failure to answer before judgment was neither intentional nor the result of conscious indifference, but was due to a mistake or an accident; (2) the motion for new trial set up a meritorious defense; and (3) the motion was filed at a time when, if granted, it would cause no delay or otherwise work an injury to the plaintiff. See Bank One, Tex. v. Moody, 830 S.W.2d 81, 82-83 (Tex. 1992).

          In reviewing a trial court’s ruling on a motion for new trial, we leave the question of whether a defendant has satisfied the Craddock test to the trial court’s discretion, and we will not disturb the trial court’s ruling unless the court abuses its discretion. Wiseman v. Levinthal, 821 S.W.2d 439, 441 (Tex. App.—Houston [1st Dist.] 1991, no writ). That discretion, however, is “not an unbridled discretion to decide cases as they might.” Scott, 873 S.W.2d at 382.

          To satisfy the first Craddock element, Richard must show that his failure to answer was neither intentional nor the result of conscious indifference, but was due to a mistake or an accident. See Craddock, 133 S.W.2d at 126. “Conscious indifference” has been defined as the failure to take some action that would seem indicated to a person of reasonable sensibilities under the circumstances. Mahand v. Delaney, 60 S.W.3d 371, 374 (Tex. App.—Houston [1st Dist.] 2001, no pet.). Even a slight excuse may justify a new trial. See Ivy v. Carrell, 407 S.W.2d 212, 213 (Tex. 1966); J.H. Walker Trucking v. Allen Lund Co., 832 S.W.2d 454, 455-56 (Tex. App.—Houston [1st Dist.] 1992, no writ). Generally, when a party relies on an agent or representative to file an answer, the party must establish that the failure to answer was neither intentional nor the result of the conscious indifference of either the party or of the agent. Estate of Pollack v. McMurrey, 858 S.W.2d 388, 391 (Tex. 1993).

          Richard argues that there is no evidence of conscious indifference because on the same day that he was served, he delivered the citation and petition to his insurance agent’s office to see if he could stop his wife from suing him, and his insurance agent’s employee was under the mistaken belief that no suit was on file.

          On August 19, 2002, the same day that he was served, Richard went to Debbie’s attorney’s office and was told to deliver the suit papers to his insurance company. Later that day, Richard delivered the petition and citation to the office of his Allstate insurance agent, Jerry Anderson, by delivering it to Anderson’s employee, Amy Kelly. Richard asked Kelly how he could dissuade his wife from suing him, and Richard and Kelly discussed the under-insured motorist coverage held by Richard and Debbie. Kelly called Allstate Insurance Company to inquire about whether an under-insured motorist claim could be made. Kelly then told Richard that such a claim could be made and that this would not require his wife to sue him. Richard was satisfied with this result.

          Kelly testified that she did not know that she was supposed to forward the suit papers to Allstate Insurance Company’s claims office. She testified that she never read the suit papers nor did she truly understand that a suit had been filed. Kelly testified that, on approximately October 7, 2002, she received a call from Debbie’s attorney, Michael O’Connor. O’Connor told Kelly that no answer had been filed on Richard’s behalf and that Allstate would be given another chance to file an answer.           However, O’Connor testified that this call took place on October 1, 2002 rather than on October 7, 2002. He testified that Kelly advised him that Richard did not want to pursue the lawsuit. O’Connor testified that he told Kelly that the lawsuit was still pending and an answer needed to be filed. O’Connor testified that he told Kelly to have Anderson contact him to discuss the matter. O’Connor testified that he did not receive a call from Anderson and that, on October 3, 2002, he contacted the trial court to set a default judgment hearing.

          Kelly testified that, on October 7, she consulted Anderson, and Anderson told her to fax the papers to Allstate. Kelly testified that Anderson stated that this was a “really big deal” and told Kelly “You need to get on top of it.” Kelly testified that she tried calling the Allstate adjuster handling the file to obtain a good fax number but could not reach him immediately. Anderson testified that, during this time, Allstate Insurance Company was consolidating its offices in San Antonio. Kelly testified that, on October 9, 2002, she sent the suit papers for the first time to Allstate’s claims office to adjuster David Stevens. Two days earlier, Debbie had obtained a default judgment against Richard for $50,000. Richard’s answer was not filed until October 23, 2002.

          Richard asserts that misplacing or losing a citation by a defendant or his agent does not constitute conscious indifference. However, the facts in this case do not involve the misplacement or loss of a citation. The trial court concluded that the telephone call between Kelly and O’Connor took place on October 1, 2002 rather than on October 7, 2002. Thus, eight full days elapsed between the telephone call and the faxing of the citation to the claims representative. Another two weeks elapsed before the answer was filed.

          Here, before October 1, 2002, Richard’s and his agent’s failure to file an answer could have been characterized as an accident or mistake. However, Kelly’s inaction after the October 1, 2002 telephone call from O’Connor, providing Allstate with additional, actual notice of a possible default judgment, constitutes conscious indifference. See First Nat’l Bank v. Peterson, 709 S.W.2d 276, 279-80 (Tex. App.—Houston [14th Dist.] 1986, writ ref’d n.r.e.) (equating conscious indifference with inaction resulting from alleged ignorance); Johnson v. Edmonds, 712 S.W.2d 651, 652-53 (Tex. App.—Fort Worth 1986, no writ) (holding that appellant’s failure to seek help or advice or make inquiries about import of “papers” he received constituted conscious indifference).

          It is unnecessary for us to consider whether Richard met the other Craddock elements because he has not established that his failure to appear was not the result of conscious indifference. We hold that the trial court did not abuse its discretion in denying Richard’s motion for new trial.

          We overrule Richard’s third point of error.

Findings of Fact and Conclusions of Law

          In his fourth point of error, Richard contends that the trial court erred when it made an erroneous finding of fact and conclusion of law.

          When a trial court makes findings of fact, the findings are reviewed on appeal using the factual sufficiency standard. McDermott v. Cronin, 31 S.W.3d 617, 623 (Tex. App.—Houston [1st Dist.] 2000, no pet.). Findings of fact in a case tried to the court have the same force and dignity as a jury’s verdict. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991); Simmons v. Compania Financiera Libano, S.A., 830 S.W.2d 789, 791 (Tex. App.—Houston [1st Dist.] 1992, writ denied). A trial court’s conclusions of law are reviewed de novo. McDermott, 31 S.W.3d at 623. An incorrect finding of fact or conclusion of law does not warrant a reversal if the judgment is otherwise correct. Vaughn v. DAP Fin. Servs., Inc., 982 S.W.2d 1, 6 (Tex. App.—Houston [1st Dist.] 1997, no pet.). Reversal is proper only if a different verdict would have occurred but for the error. Id.

           Richard challenges the finding of fact that reads as follows: “Defendant, Richard Fiske’s actions, by [and] through his insurance agent, amounted to conscious indifference with respect to answering this lawsuit in a timely and correct manner.” Here, as noted above, Kelly testified that she was contacted by O’Connor on October 7, 2002, and she remembered that the telephone call occurred on October 7th rather than an earlier date, because that day was Anderson’s birthday. Anderson testified that Kelly came to him with an overdue answer on October 7, 2002 and that he remembered this date because it was his birthday. Anderson testified that he told Kelly to fax the papers “immediately” to Allstate’s claims office because he “knew how important that was.” However, O’Connor testified that he called Kelly on October 1, 2002, requested that an answer be filed, and requested that Anderson contact him to discuss the matter.

          The trial court, as the factfinder, was the sole judge of the credibility of the witnesses. See Southwestern Bell Media, Inc. v. Lyles, 825 S.W.2d 488, 493 (Tex. App.—Houston [1st Dist.] 1992, writ denied). Here, the trial court was entitled to determine the credibility of the witnesses, and we will defer to that determination. See id. Accordingly, the trial court did not err in making its finding of fact.

          Next, Richard complains of the trial court’s conclusion of law that reads, “The failure to timely answer the Original Petition filed in this case was the result of conscious indifference on the part of defendant Richard Fiske, by and through the actions of his insurance agent and his agent’s employees.” Here, there was sufficient evidence to support the trial court’s previously-discussed finding of fact, that Richard’s and his agent’s actions amounted to conscious indifference with regard to answering the suit. Further, as we have held above, Richard did not meet the first prong of Craddock—showing that his failure to answer was neither intentional nor due to conscious indifference. Accordingly, we hold that the trial court did not err in entering its conclusion of law.

          We overrule appellant’s fourth point of error.

Remittitur

          In his fifth point of error, Richard contends that the trial court erred when it overruled his request for a remittitur.

          A request for a remittitur presents a challenge to the factual sufficiency of the evidence. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex. 1998); Carter v. Steverson & Co., 106 S.W.3d 161, 168 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). We have already held above that the evidence was legally and factually sufficient to support the full amount of the damages awarded in the trial court’s judgment. Accordingly, we overrule Richard’s fifth point of error.

Conclusion

          We affirm the judgment of the trial court.

                                                             George C. Hanks, Jr.

                                                             Justice

Panel consists of Justices Taft, Hanks, and Higley.