Maria C. Figueroa v. Edgar Davis

Opinion issued April

8, 2010.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-07-01109-CV

———————————

Maria C. Figueroa , Appellant

V.

Edgar Davis

JR. , Appellee

On Appeal from the County Civil Court at Law No. 2

Harris County, Texas

Trial Court Case No. 783,981

O P I N I O N

Appellant,

Maria C. Figueroa, appeals from a judgment rendered upon a jury verdict in

favor of appellee, Edgar Davis Jr. We

determine whether (1) the evidence is legally and factually sufficient to

support damages and (2) the trial court abused its discretion in its award of

prejudgment interest. We affirm.

BACKGROUND

On

July 27, 2002, Figueroa ran a stop sign and hit the car that Davis was driving

and in which Diane Gill was his passenger.

In December of that year, Davis and Gill sued Figueroa for personal

injury and property damage. In September

2006, a jury found Figueroa negligent.

The jury awarded (1) zero dollars to Davis and Gill for all past or

future damages on which it was charged (past or future medical care, physical

pain and mental anguish, disfigurement, or physical impairment); (2) $500 in

property damage to Davis for diminution in value of his car; (3) $75 in lost

wages to Gill. The trial court rendered

judgment on the verdict. Davis and Gill

moved for new trial. The trial court

granted a new trial to Davis, but not to Gill, and rendered an amended

judgment, styled “partial final judgment,” as to Gill. Gill is not a party to this appeal.

In

September 2007, Davis’s negligence claim against Figueroa went to trial. Figueroa was again found negligent. Figueroa does not contest this liability

finding on appeal. The trial court

submitted damages by element, both by type of injury and by whether the injury

occurred in past or in future. The jury

was instructed:

Consider the elements of

damages listed below and none other.

Consider each element separately.

Do not include damages for one element in any other element. . . .

Do not include any amount

for any condition not resulting from the occurrence in question. Do not include any amount for any condition

existing before the occurrence in question, except to the extent, if any, that

such other condition was aggravated by any injuries that resulted from the

occurrence in question.

The jury awarded Davis the following damages:

·

$10,000 for past physical pain and mental anguish,

·

$450 for future physical pain and mental anguish,

·

$10,000 for past disfigurement,

·

$450 for future disfigurement,

·

$10,000 for past physical impairment,

·

$450 for future physical impairment,

·

$5,267.78 for past medical care, and

·

$5,865 for future medical care.

“Physical pain,” “mental anguish,” “disfigurement,”

and “physical impairment” were not defined in the charge, and no party objected

to the lack of such definitions.

On

September 25, 2007, the trial court signed a judgment on the verdict, awarding,

among other things, $42,482.78 in total damages and $14,091.30 in prejudgment

interest.

Figueroa

timely moved to modify the judgment, with alternative requests for new trial or

for remittitur. On December 6, 2007, the

trial court signed an order denying Figueroa’s motion, but nonetheless signed

an amended judgment. The amended judgment

retained the previous damage award, but reduced prejudgment interest to

$14,005.83. Figueroa appeals.

SUFFICIENCY OF THE EVIDENCE

Under

issue two, Figueroa raises two complaints.

First, she argues that there is legally and factually insufficient

evidence to show past or future physical pain or mental anguish or future disfigurement. Second, Figueroa contends that there is

legally and factually insufficient evidence to support the award of damages for

future medical care. In partial support

of both of these arguments, Figueroa also contends that the lack of expert

medical testimony connecting Davis’s dental injuries with the accident

precludes any damages (including past and future medical expenses) based on

that injury.

A.

Standards of Review

When,

as here, an appellant attacks the legal sufficiency of an adverse finding on an

issue for which it did not have the burden of proof, it must demonstrate that

there is no evidence to support the adverse finding. Croucher

v. Croucher , 660 S.W.2d 55, 58 (Tex. 1983).

Such a no-evidence challenge will be sustained when “‘(a) there is a

complete absence of evidence of a vital fact, (b) the court is barred by rules

of law or of evidence from giving weight to the only evidence offered to prove

a vital fact, (c) the evidence offered to prove a vital fact is no more than a

mere scintilla, or (d) the evidence conclusively establishes the opposite of

the vital fact.’” King Ranch, Inc. v. Chapman , 118 S.W.3d 742, 751 (Tex. 2003)

(quoting Merrell Dow Pharms., Inc. v.

Havner , 953 S.W.2d 706, 711 (Tex. 1997)).

In

our legal-sufficiency review, “we must view the evidence in a light that tends

to support the finding of disputed fact and disregard all evidence and

inferences to the contrary.” Wal-Mart Stores, Inc. v. Miller , 102

S.W.3d 706, 709 (Tex. 2003). Nonetheless, “[t]he final test for legal

sufficiency must always be whether the evidence at trial would enable

reasonable and fair-minded people to reach the verdict under review. . . . [L]egal-sufficiency review in the proper

light must credit favorable evidence if reasonable jurors could, and disregard

contrary evidence unless reasonable jurors could not.” City of

Keller v. Wilson , 168 S.W.3d 802, 827 (Tex. 2005).

If

more than a scintilla of evidence supports the jury’s finding, “the jury’s

verdict . . . must be upheld.” Miller , 102 S.W.3d at 709 . “[M]ore than a scintilla of evidence exists

if the evidence ‘rises to a level that would enable reasonable and fair-minded

people to differ in their conclusions.’”

Ford Motor Co. v. Ridgway , 135

S.W.3d 598, 601 (Tex. 2004) (quoting Havner ,

953 S.W.2d at 711 ). Conversely, evidence

that is “‘so weak as to do no more than create a mere surmise’” is no more than

a scintilla and, thus, no evidence. Id. (quoting Kindred v. Con/Chem., Inc. , 650 S.W.2d 61, 63 (Tex. 1983)).

To

the extent that Figueroa preserved certain legal-sufficiency challenges only by

motion for new trial, her relief on them is limited to remand, not rendition. [1] See Brown

v. Traylor , 210 S.W.3d 648, 659 (Tex. App. — Houston [1 Dist.] 2006, no pet.) (holding

that legal-sufficiency challenge raised in motion for new trial allowed only

for remand).

In reviewing a factual-sufficiency

challenge to a finding on an issue on which the appellant did not have the

burden of proof, we consider and weigh all of the evidence and set aside the

judgment only if the evidence that supports the challenged finding is so weak

as to make the judgment clearly wrong and manifestly unjust. Cain v. Bain , 709 S.W.2d 175, 176 (Tex.1986).

We must examine both the evidence supporting and that contrary to the judgment. [2] See Dow Chem. Co. v. Francis , 46 S.W.3d 237, 241 (Tex. 2001).

Under

either type of sufficiency challenge, the jury is the sole judge of witnesses’

credibility, and it may choose to believe one witness over another; a reviewing

court may not impose its own opinion to the contrary. City of

Keller , 168 S.W.3d at 819 . Because it is the jury’s province to resolve

conflicting evidence, we must assume that jurors resolved all conflicts in

accordance with their verdict. Id. at 819–20.

B. Expert Testimony on Causation

Under

part of her first issue, Figueroa contends that the evidence is legally or

factually insufficient to prove any damages related to Davis’s dental injury

because Davis failed to present any expert testimony of causation. Specifically, Figueroa contends that (1) the

only testimony of causation came from Davis, who was not an expert; (2) lay

testimony did not suffice to prove causation in this case; and, in any event,

(3) Davis’s testimony on causation was “entirely subjective,” and his initial

medical records “omit entirely any mention of” this injury. [3] Because this third argument does not concern

the necessity for expert causation testimony, we construe it as an alternative

sufficiency challenge: that if no expert testimony was required, then Davis’s

lay testimony that was offered to show causation was legally or factually

insufficient for the stated reasons. Figueroa

raised these sufficiency challenges for the first time in her motion for new

trial.

1. The

Law

“The

general rule has long been that expert testimony is necessary to establish

causation as to medical conditions outside the common knowledge and experience

of jurors.” Guevara v. Ferrer , 247 S.W.3d 662, 665 (Tex. 2007). However, “in limited circumstances, the

existence and nature of certain basic conditions, proof of a logical sequence

of events, and temporal proximity between an occurrence and the conditions can

be sufficient to support a jury finding of causation without expert evidence.” Id.

at 667. That is, “the causal connection

between some events and conditions of a basic nature (and treatment for such

conditions) are within a layperson’s general experience and common sense.” Id.

at 668 . “This conclusion accords with

human experience, [the Texas Supreme Court’s] prior cases, and the law in other

states where courts have held that causation as to certain types of pain, bone

fractures, and similar basic conditions following an automobile collision can

be within the common experience of lay jurors.”

Id. “Thus, non-expert evidence alone is

sufficient to support a finding of causation in limited circumstances where

both the occurrence and conditions complained of are such that the general

experience and common sense of laypersons are sufficient to evaluate the

conditions and whether they were probably caused by the occurrence.” Id. When the exception applies, then “[g]enerally,

lay testimony establishing a sequence of events which provides a strong,

logically traceable connection between the event and the condition is sufficient

proof of causation.” Morgan v. Compugraphic Corp. , 675 S.W.2d

729, 733 (Tex. 1984).

2. Discussion

The

trial court admitted Davis’s medical records accompanied by a Texas Civil

Practice and Remedies Code section 18.001 affidavit, which was not

controverted. See Tex. Civ. Prac. & Rem. Code Ann. § 18.001(b) (Vernon 2008). This

proved only the expenses’ reasonableness and necessity, not causation. See id.

(“Unless a controverting affidavit is filed as provided by this section, an

affidavit that the amount a person charged for a service was reasonable at the

time and place that the service was provided and that the service was necessary

is sufficient evidence to support a finding of fact by judge or jury that the

amount charged was reasonable or that the service was necessary.”); S.W. Bell Tel., L.P. v. Valadez , No.

2-07-129-CV, 2008 WL 425746 , at *3 (Tex. App.—Fort Worth Feb. 14, 2008, no

pet.) (memo. op.) (providing that compliance with section 18.001 does not

establish causation). The sole evidence

of causation came from Davis.

The accident occurred on July 27,

2002, a Saturday. Davis testified that

when the vehicles impacted, his “body went forward” and his “teeth and neck hit

the steering wheel.” His mouth was not

then bleeding, and his teeth were not knocked out right then from the impact,

but they were “cracked.” Davis testified

that the officer who came to the scene “asked [him] about—what was wrong with

[his] mouth.” Davis explained that the

officer’s question was the result of his having told her that he “couldn’t

talk, because it was hurting.”

Over the next few days after the

wreck, Davis’s teeth “would be in pieces in [his] mouth” when he woke up in the

morning, and when he tried brushing his teeth, they “would just fall out” and

would “break off.” Eventually, his front

teeth fell out entirely, leaving only “pieces up in the roof of [his] mouth.” Davis answered “No, sir” to the question: “Are

you aware of any prior record in this case that says that you hit your mouth on

anything other than a steering wheel?” A

dental patient information form from one of Davis’s treating clinics indicated

that Davis had not before been told that he had gum or periodontal disease,

although the same form indicated that Davis had not had a dental examination,

x-rays, or cleaning in the past six months.

This testimony establishes “ a sequence

of events which provides a strong, logically traceable connection between the

event and the condition is sufficient proof of causation.” Morgan ,

675 S.W.2d at 733 . It is more than mere

temporal proximity: Davis’s teeth hit a hard object during the impact, they

were immediately cracked, and within days, they were crumbling and falling out

of his mouth. This evidence is akin to

the “pain, bone fractures, and similar basic conditions following an automobile

collision” that the Guevara court

indicated would fall within the common experience of lay persons so that

causation could stand on lay testimony. See Guevara , 247 S.W.3d at 665 ; see also Valadez , No. 2-07-129-CV, 2008 WL 425746 , at *3 (holding

that plaintiff’s lay testimony—that he experienced severe pain to shoulder

immediately upon falling into hole, combined with evidence that plaintiff had

not had this pain before accident—sufficed to show causation) . The trial court did not err in so

determining.

Figueroa alternatively argues that, if

lay testimony could prove causation, Davis’s testimony fell short because it

was “entirely subjective” and was not reflected in the medical records of the

initial clinic that Davis visited. Davis

first sought medical attention at Accident and Injury (“A&I”) within less

than a week after the accident. No one

at A&I checked his teeth. What

appears to be initial questionnaires and personal histories completed at

A&I indicated “none” for “dental problems” and impact to head or face, and

Davis testified at trial that he did not remember telling his care providers at

A&I about his dental injury.

However, Davis also testified that he must have told the A&I staff

about his dental problems, since he was sent to his second treating clinic,

Americare, for the very reason that Americare “had a dental facility” and

A&I did not. Supporting Davis’s

testimony was a “treatment plan” form from A&I, dated August 1, 2002,

indicating, “Refer for dental consult.”

Additionally, the records at Americare—the earliest of which was dated

August 8, 2002—showed that Davis had injured his teeth. Davis received dental care at Americare,

which in July 2003 drew up an estimate for permanent teeth to replace Davis’s

lost ones.

The fact that Davis’s dental injury

was not recorded until his second set of medical records, in contrast to his

testimony that his injury was immediate upon impact, went to the weight of his

testimony—a matter for the jury to resolve.

See City of Dallas v. Allen ,

No. 05-01-00158-CV, 2002 WL 357165 , at *2 (Tex. App.—Dallas Mar. 7, 2002, no

pet.) (not designated for publication) (holding that evidence of causation was

legally sufficient when car-accident plaintiff testified that he reported elbow

injury at time of medical treatment, even though initial medical records did

not reveal that he did so). The evidence

is not legally or factually insufficient because of it.

C. Non-Economic Damages

Figueroa

next challenges the legal and factual sufficiency of the jury’s award of all

non-economic damages, past and future.

“Non-economic

damages include compensation for pain, suffering, mental anguish, and

disfigurement.” Golden Eagle Archery, Inc. v. Jackson , 116 S.W.3d 757, 763 (Tex.

2003). “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.” HCRA of Tex., Inc. v. Johnston , 178

S.W.3d 861, 871 (Tex. App. — Fort Worth

2005, no pet.). “Once the existence of

some pain, mental anguish and disfigurement has been established, there is no

objective way to measure the adequacy of the amount awarded as compensation,

which is generally left to the discretion of the fact finder.” Pentes

Design, Inc. v. Perez , 840 S.W.2d 75, 80 , (Tex. App. — Corpus Christi 1992, writ denied). “The amounts of damages awarded for pain and

suffering and disfigurement are necessarily speculative and each case must be

judged on its own facts.” Id. at 80-81 .

1. Past and Future Physical Pain and Mental Anguish

The

jury awarded $10,000 and $450, respectively, for physical pain and mental

anguish sustained in the past and future.

Physical

pain and suffering may be established by circumstantial evidence. Johnston , 178 S.W.3d at 871 . “The duration of the pain . . . is an

important consideration.” Id. The

fact finder “is given a great deal of discretion in awarding an amount of

damages it deems appropriate for pain and suffering.” Id.

Davis

testified that upon impact, he was thrown forward, and his neck and teeth hit

the steering wheel. Within a few days,

his attorney sent him to A&I for treatment.

Davis claimed that his neck, lower back, and teeth were hurt in the

accident. His medical records from both

A&I and Americare indicated that within a few days of the accident, he was

having headaches and radiating neck and back pain (which Americare’s records

indicated was “severe”) and that he was being treated for these things multiple

times from August through October 2002 at Americare. Although he had injured his neck and back in

an on-the-job accident about five years before trial, Davis was no longer

receiving “any kind of treatment” for his neck and back when the instant

accident occurred, any residual pain that he had from that prior had resolved

after a few months, and he reported to his Americare doctor that “he was in a

good state of health and did not suffer from” his symptoms prior to the instant

car accident. Although Davis’s back at

the time of the second trial was “better,” he believed that “it’s not going to

ever be right.”

In contrast, Davis admitted that he

was not blaming all of his current back problems on the accident with

Figueroa. He also admitted that his

prior back injury had not been fully resolved before the instant accident,

although it had gotten “better.” Davis

voluntarily ceased physical therapy at Americare in October 2002 because he

“felt that [he] didn’t need [any] more therapy.” Finally, he testified that he did not plan to

return for physical therapy in the future unless he had to do so.

Davis

smashed his teeth into the steering wheel with such force that they cracked

immediately and crumbled shortly thereafter.

For just under five years, Davis had small fragments of his front teeth

protruding from his gum line. Davis

tried to eat every day, but could not always do so. He could not drink anything cold, describing

the pain that he felt when he did so as a “chill.” Neither could Davis eat anything hard, such

as apples. He had to eat certain foods

from the side of his mouth. Anbesol had not

helped alleviate his tooth pain, although aspirin did.

Americare’s

2003 estimate for re placing

Davis’s teeth with permanent fixtures was $5,865, which Davis could not

afford. Davis testified that “because

[he] waited so long to hear from these people [sic] about my teeth,” and

because he “was about to starve to death,” he decided to obtain a “gold card,”

which would allow him to be treated in the Harris County Hospital District

(“HCHD”). It took two applications, but

Davis finally obtained a gold card shortly before trial. The HCHD’s treatment plan involved pulling

Davis’s teeth and replacing them with a removable bridge. About two weeks before the second trial,

Davis had HCHD pull four of his teeth, after which he felt “much better.”

Sufficient

evidence of either past physical pain or past mental anguish could support the

award because the charge did not ask for separate damages figures for each type

of injury. The above evidence is some

evidence of past physical pain arising from Davis’s teeth, back, and neck

injuries; it is also not such weak evidence of past physical pain as to render

the $10,000 award manifestly unjust. See Perez , 840 S.W.2d at 80-81 (holding that evidence was

legally and factually sufficient to support $500,000 award for mental anguish,

physical pain, and disfigurement for child whose two permanent front teeth were

lost while playing in area designed by defendant). Moreover, the jury could rationally have

determined that undergoing a procedure to install permanent teeth—which would

entail bone replacement grafts, removal of exposed roots, scaling and root

planing, and fusion of porcelain teeth—would result in some physical pain in

the future. Such an inference would

support the very modest sum that the jury awarded as damages for future pain

and mental anguish. That same inference

is also not so weak as to render the future-damages award manifestly unjust.

2. Past

and Future Disfigurement

The

jury awarded $10,000 and $450, respectively, for disfigurement in the past and

future.

“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.] 2005, pet. denied).

“The matter of future disfigurement is necessarily speculative and there

is no mathematical yard stick by which one can measure damages for it.” Tri-State

Motor Transit Co. v. Nicar , 765 S.W.2d 486, 494 (Tex. App.—Houston [14th

Dist.] 1989, no writ). “Each case must

be judged on its own facts and considerable discretion must be vested in the

jury.” Id.

The above evidence showing that

Davis’s front teeth crumbled out of his mouth, leaving only small pieces at his

gumline, that they were not pulled until almost five years later, and that they

were still missing at trial is some evidence that supports the jury’s finding

of past-disfigurement damages. See Perez , 840 S.W.2d at 80-81 (holding

that evidence was legally and factually sufficient to support $500,000 award

for mental anguish, physical pain, and disfigurement for child whose two

permanent front teeth were lost in injury occurring in play area designed by

defendant). Moreover, the jury could

rationally have inferred that at least some time would pass before Davis could

undergo the procedure to install permanent teeth, which inference would support

the small sum that it awarded as damages for future disfigurement. That rational inference is not so weak as to

render the future-damages award manifestly unjust, either.

3. Past and Future Physical Impairment

The

jury awarded $10,000 and $450, respectively, for physical impairment sustained

in the past and future.

“Physical

impairment, sometimes called loss of enjoyment of life, encompasses the loss of

the injured party's former lifestyle.” Gen. Motors Corp. v. Burry , 203 S.W.3d

514, 554 (Tex. App. —Fort Worth

2006, pet. denied); see Doctor ,

186 S.W.3d at 18 (quoting Golden Eagle

Archery, Inc. , 116 S.W.3d at 772 ). “[L]oss

of enjoyment of life fits best among the factors a factfinder may consider in

assessing damages for physical impairment.

Indeed, if other elements such as pain, suffering, mental anguish, and

disfigurement are submitted, there is little left for which to compensate under

the category of physical impairment other than loss of enjoyment of life.” Golden

Eagle Archery, Inc. , 116 S.W.3d at 772 .

A plaintiff generally must show that his physical-impairment damages are

substantial and extend beyond any pain, suffering, mental anguish, lost wages

or diminished earning capacity. Burry , 203 S.W.3d at 555 ; see Golden Eagle Archery, Inc. , 116

S.W.3d at 772 (indicating that it would be “appropriate to advise the jury [by

instruction] that it may consider as a factor loss of enjoyment of life. But the jury should be instructed that the

effect of any physical impairment must be substantial and extend beyond any

pain, suffering, mental anguish, lost wages or diminished earning capacity and

that a claimant should not be compensated more than once for the same elements

of loss or injury.”). In this case,

physical impairment was undefined, and the relevant instruction was that the

jury “[c]onsider the elements of damages listed below and none other. Consider each element separately. Do not include damages for one element in any

other element.”

Figueroa contends on appeal that Davis did not

complain of any sport, hobby, or other recreational activity that he could not

do as a result of his injuries. She also

argues that the evidence does not rise to the level of impairment because Davis

“could eat some food, he just had to chew on the side of his mouth or cut

things in half” and “could drink normal liquids, he just had a ‘chill’ when he

drank cold water.” This challenge was

preserved with respect to Figueroa’s complaints concerning future physical

impairment, which she raised by motions for directed verdict and new trial and

objections to the charge elements on future damages. However, this appellate challenge does not

comport with her sufficiency challenge made below to the past physical

impairment award, which was preserved in her motion for new trial: “[T]he only

evidence concerning past physical ‘impairment’ was that [Davis] had difficulty

eating his favorite foods due to his dental problems. Yet again, because there was no [expert]

evidence linking such problems to the motor vehicle collision, the jury’s award

of impairment damages was improper.”

In

any event, we hold that there was legally sufficient evidence to support the

award of past physical-impairment damages.

Davis testified that he tried to eat every day, but could not always do

so. Neither could Davis eat anything

hard, such as apples, or anything cold.

He could not eat some of the foods that he loved, such as hot dogs and

hamburgers. He had to eat certain foods

from the side of his mouth or had to eat soft foods. This condition lasted for years before

trial.

The

jury was instructed to award damages separately for each injury, without

awarding damages attributable to one injury for another injury; we presume that

the jury followed this instruction because nothing in the record indicates that

it did not. See Golden Eagle Archery, Inc. , 116 S.W.3d at 771 . A jury rationally could have concluded that

an inability to eat whole categories of foods, or to eat any food at all some

days, over a period of several years was a loss of enjoyment of life (and thus

a past physical impairment) separate and apart from the physical pain or

disfigurement arising from the same injury.

Additionally, the jury could

rationally have inferred that at least some time would pass before Davis could

undergo the procedure to install permanent teeth, which inference would support

the small sum that it awarded as damages for future physical impairment. That rational inference is not so weak as to

render the future-damages award manifestly unjust.

D. Future Medical Care

Figueroa

further contends that the evidence is legally or factually insufficient to

support the award for future medical care because Davis allegedly testified

that he was not having his dental work done at the only facility for which a treatment

estimate was proved.

Americare’s

estimated cost for re placing

Davis’s teeth with permanent fixtures was $5,865. This is the exact amount that the jury

awarded for future medical care. Davis

could not afford the cost of replacing his teeth under Americare’s plan,

however. The HCHD’s treatment plan, in

contrast, involved pulling the teeth and replacing them with a removable

bridge. About two weeks before the

second trial, Davis had HCHD pull four of his teeth. When he was asked if he would be having the

remainder of his dental treatment at HCHD, Davis responded, “Yes, sir. I was. I would

prefer to have my permanent teeth .”

(Emphasis added.)

Davis’s

testimony was not that he would absolutely

receive dental treatment at HCHD.

Rather, he testified that he would instead prefer to have permanent

teeth installed. HCHD would not install

permanent teeth; only Americare would.

The jury awarded Davis the amount of Americare’s estimate for permanent

teeth. Accordingly, there was legally

and factually sufficient evidence to support the finding of future medical

care.

E. Conclusion

We

hold that there is legally and factually sufficient evidence to support all

damages awarded. We thus overrule issue

two in its entirety.

PREJUDGMENT INTEREST [4]

In issue one, Figueroa contends that

the trial court erred in calculating prejudgment interest. Primarily, she contends that the trial court

should have tolled the accrual of prejudgment interest for the entire period

between her presuit settlement offers (the earlier of which was on September 3,

2004) and the vacating of the first judgment (January 12, 2007) because the

amount of the first judgment was less than her settlement offer. Alternatively,

if the first judgment cannot be considered, she contends that the trial court

erred in tolling prejudgment interest on the amount of her settlement offer

based on only the 20 days before her earlier settlement offer was rejected by

Davis.

1. The

Law

In a

personal-injury case, “[e]xcept as provided by Section 304.105 . . . ,

prejudgment interest accrues on the amount of a judgment during the period

beginning on the earlier of the 180th day after the date the defendant receives

written notice of a claim or the date the suit is filed and ending on the day

preceding the date judgment is rendered.”

Tex. Fin. Code Ann. § 304.104 (Vernon 2006). Section 304.105 then provides:

(a) If judgment for a claimant is equal to or less than the amount

of a settlement offer of the defendant, prejudgment interest does not accrue on

the amount of the judgment during the period that the offer may be accepted.

(b) If judgment for a claimant is more than the amount of a

settlement offer of the defendant, prejudgment interest does not accrue on the

amount of the settlement offer during the period that the offer may be

accepted.

Id. § 304.105 (Vernon 2006).

“[B]oth the party seeking prejudgment interest and the party seeking to

toll it must provide the court with evidence competent . . . to establish the

proper amount of the award.” Quality Beverage, Inc. v. Medina , 858

S.W.2d 8, 11 (Tex. App.—Houston [1st Dist.] 1993, no writ). “This evidence may be presented at any time

during the court’s plenary power.” Id.

“The

abuse of discretion standard applies to the trial court’s factual findings as

they relate to prejudgment interest; but the de novo standard applies to the

trial court’s application of the law to the facts.” Toshiba

Mach. Co., Am. v. SPM Flow Control, Inc. , 180 S.W.3d 761, 785 (Tex. App. — Fort Worth 2005, pet. granted, judg. vacated

w.r.m.).

2. Procedural

History

Davis

filed suit on December 2, 2002. The

first trial resulted in a verdict for Davis of $500, which was memorialized in

a final judgment dated November 10, 2006.

The court granted a new trial on January 12, 2007. Upon a second trial, the jury awarded Davis

$42,482.78. The trial court rendered

judgment accordingly, also awarding $14,091.30 in prejudgment interest.

By

motion to modify the judgment, Figueroa contended that the trial court had

erred in calculating prejudgment interest.

She alleged that she had made a written settlement offer for $3,000 on

September 3, 2004. Necessarily invoking

section 304.105(a), Figueroa contended that prejudgment interest should not

have accrued on the amount of the final judgment ($42,482.78) from September 3,

2004 (the date of her $3,000 settlement offer) until January 12, 2007 (the date

that new trial was granted) because the first judgment had been less than the

$3,000 offer. Her motion to modify did

not mention whether that offer had been rejected. Portions of the record indicate that Figueroa

filed a supplement to the motion to modify, but the appellate record does not

contain that supplement.

At

the hearing on Figueroa’s motion to modify, Davis’s counsel admitted that

Figueroa had made a $3,000 settlement offer on September 3, 2004, [5] but contended that that

offer had been rejected on September 23, 2004 by counteroffer. In support, Davis attached to his verified

response to the motion to modify a copy of his September 23, 2004 letter making

a “formal settlement demand” upon Figueroa for her policy limits. Figueroa acknowledged the rejection, but

responded that she had extended a $3,500 settlement offer after that September

23 rejection; however, she produced no evidence of the $3,500 offer, and Davis

did not judicially admit that the $3,500 settlement offer had been made. The parties disputed whether the award

amount of first judgment, which had been vacated, could be considered for

purposes of calculating prejudgment interest, i.e. , they disputed whether section 304.105(a) applied.

The

trial court’s subsequent written order denied the motion to modify, but issued

an amended judgment on December 6, 2007, which reduced prejudgment interest to

$14,005.83, apparently attempting to take into account the 20-day period before

the $3,000 offer was rejected in the calculation of prejudgment interest.

3. Discussion

We

reject Figueroa’s primary argument that section 304.105(a) applies because the

first judgment was less than her settlement offer. Section 304.105(a) applies when “ judgment for a claimant is equal to

or less than” the settlement offer. Tex. Fin. Code Ann. § 304.104(a). The only settlement

offer that was proved was $3,000. The

final judgment rendered in December 2007 was not equal to or less than

$3,000. Figueroa’s reliance on the

lesser amount awarded in the November 10, 2006 judgment is misplaced because

that judgment was vacated when a new trial was granted. “When a motion for new trial is granted, ‘the

case shall be reinstated upon the docket of the trial court and stand for trial

the same as though no trial had been had.’”

Wilkins v. Methodist Health Care

Sys. , 160 S.W.3d 559, 563 (Tex. 2005) (quoting Wichita Falls Traction Co. v. Cook , 122 Tex. 446 , 60 S.W.2d 764,

768 (1933)). “Thus, when the trial court

grants a motion for new trial, the court essentially wipes the slate clean and

starts over.” Id. The November 10, 2006

judgment became a nullity the moment that the trial court granted a new trial,

and it thus cannot function to toll the accrual of prejudgment interest under

section 304.105(a).

Figueroa

alternatively argues:

Appellant should get a

prejudgment interest credit of $3,000 off the total judgment from the time when

the written offer was tendered until the date the 2007 judgment was

signed. Appellant does not agree that

she should only get credit for twenty days because Appellant never withdrew the

$3,000 offer and, in fact, tendered a $3,500 offer AFTER Appellee rejected the

first offer, indicating to Appellee that the offer could still be accepted.

. . .

Furthermore, the trial

court’s interpretation of the statutes in regard to the twenty days Appellee

took to reject the offer flies in the face of section 304.105's plain language,

which provides that prejudgment interest does not accrue on the amount of the

judgment “during the period that the offer may be accepted.” . . .

According to the face of the statute, a claimant’s rejection of an offer

is not necessarily dispositive of whether the offer “may be accepted” — the

question is whether the offer could have been accepted. Appellant never withdrew the offer to settle

the case and, in fact, extended a second offer of $3,500 after Appellee

rejected the first offer. . . .

(Emphasis added.)

This argument necessarily invokes section 304.105(b), which applies when

the judgment exceeds the settlement offer and provides that “prejudgment

interest does not accrue on the amount of

the settlement offer during the period that the offer may be accepted.” Tex.

Fin. Code Ann. § 304.105(b) (emphasis added).

Figueroa produced no evidence of the

$3,500 offer, and it cannot be considered for any purpose relating to

prejudgment interest. See Medina ,

858 S.W.2d at 11 (“[B]oth the party seeking prejudgment interest and the party

seeking to toll it must provide the court with evidence competent . . . to

establish the proper amount of the award.”).

That leaves only the $3,000 offer, which was rejected 20 days after it

was made. [6] Figueroa’s

specific issue is thus whether, as a matter of law under section 304.105(b),

the rejection of the $3,000 settlement offer caused the “period that the offer

may be accepted” to expire. That

question has already been answered in the affirmative. See

Qwest Communications Int’l, Inc. v. AT&T Corp. , 114 S.W.3d 15, 41 (Tex.

App.—Austin 2003) (“[T]he period that the offer may be accepted,” within the

meaning of section 304.105, expires when the plaintiff rejects the offer), rev’d on other grounds , 167 S.W.3d 324

(Tex. 2005); Harris v. Mickel , 15

F.3d 428, 429 (5th Cir. 1994). Under contract

principles, once an offer is rejected, it is terminated, and the rejecting

party cannot thereafter accept it; accordingly, the “period that the offer may

be accepted” under section 304.105 terminates when the offer is rejected. See Qwest Communications

Int’l, Inc. , 114 S.W.3d at 41 ; Harris ,

15 F.3d at 429 .

We hold that the trial court did not

err in awarding prejudgment interest for the reasons that Figueroa argues. We

overrule issue one in its entirety.

CONCLUSION

We affirm the judgment of the trial

court.

Sherry

Radack

Chief

Justice

Panel

consists of Chief Justice Radack and Justices Alcala and Higley.

[1] Moreover, Figueroa prays only for a remand, not for a rendition.

[2] Figueora does not challenge the excessiveness of the

damages awarded. See Golden Eagle Archery, Inc. v. Jackson , 116 S.W.3d 757, 773-74

(Tex. 2003) (providing that in reviewing excessiveness challenge, court

considers “all the evidence that bears on the challenged category of damages,

even if the evidence also relates to another category of damages” and that “if

more than one award in overlapping categories is challenged as excessive,”

court must “consider all the evidence that relates to the total amount awarded

in all overlapping categories to determine if the total amount awarded was

excessive.”).

[3]

In

one sentence of her appellate brief, Figueroa states, “There was also no expert

testimony provided to inform the jury as to the alleged level of pain directly

attributable to the collision as opposed to the alleged level of pain directly

attributable to [Davis's] preexisting back injury.” She does not brief this argument separately. More importantly, Figueroa does not advise

where she preserved such a sufficiency challenge based on lack of expert

testimony, and we have not found it in her motion for new trial, her motion for

directed verdict, or in her objections at the charge conference. In fact, the only sufficiency challenge based

on lack of expert testimony that we have located is that contained in her

motion for new trial, which complained solely that expert testimony was

required to prove Davis’s dental injuries. We thus do not address this

argument. See Tex. R. App. P. 33.1(a)(1).

[4] In his

appellee’s brief, Davis asks us to modify the prejudgment interest award. However, he did not file a notice of appeal,

and we may thus not grant the relief that he requests. See Tex. R. App. P. 25.1(c) .

[5]

In

his appellee’s brief, Davis contends that Figueroa produced no evidence of the

$3,000 offer. However, Davis’s counsel’s

courtroom admission replaced the need to enter evidence of this fact. See

Bowen v. Robison , 227 S.W.3d 86, 92 (Tex. App. —Houston [1st

Dist.] 2006, pet. denied) (“A judicial admission is a formal waiver of proof

that dispenses with the production of evidence on an issue.”).

[6]

Figueroa contends that that $3,000 offer remained

open, as a matter of law, even after Davis’s counteroffer, but it did not. See Blackstone

v. Thalman , 949 S.W.2d 470, 473 (Tex. App. —Houston

[14th Dist.] 1997, no writ) (“A counteroffer constitutes a rejection, not an acceptance, of the

original offer.”) .