# Guillermo Ochoa-Cronfel v. Patrick C. Murray > Texas Court of Appeals, 3rd District (Austin) · September 14, 2015 URL: https://www.frixlaw.com/law-library/cases/4073274 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** September 14, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4073274 ## How later opinions describe it (automated extraction) - noting summary judgment exception to requirement of hearing at which witnesses present sworn testimony in person or by deposition rather than by affidavit ## Opinion text ACCEPTED 03-15-00242-CV 6919167 THIRD COURT OF APPEALS AUSTIN, TEXAS 9/14/2015 4:56:31 PM JEFFREY D. KYLE CLERK Case Number 03-15-00242-CV IN THE THIRD DISTRICT COURT OF APPEALS FILED IN 3rd COURT OF APPEALS at Austin AUSTIN, TEXAS 9/14/2015 4:56:31 PM JEFFREY D. KYLE GUILLERMO OCHOA-CRONFEL, Clerk Appellant, v. PATRICK C. MURRAY, Appellee. From Cause No. D-1-GN-11-002136 in the 345th Judicial District Court Of Travis County, Texas APPELLANT’S BRIEF Paul T. Morin, P.C. Guillermo Ochoa-Cronfel State Bar No. 14460550 State Bar No. 15175600 503 W. 14th Street 2700 Bee Caves Road, Suite 103 Austin, Texas 78701 Austin, Texas 78746 Telephone: (512) 499-8200 Telephone: (512) 347-9600 Facsimile: (512) 499-8203 Facsimile: (512) 347-9911 PMorin@austin.rr.com Guillermo@thecronfelfirm.com ATTORNEYS FOR APPELLANT Oral Argument Requested September 14, 2015 IDENTITY OF PARTIES AND COUNSEL Appellant and Plaintiff below: Guillermo Ochoa-Cronfel (hereafter, “Cronfel” and/or “Plaintiff”). Trial Counsel for Plaintiff: Mr. Paul T. Morin Texas Bar No. 14460550 Paul T. Morin, P.C. 503 West 14th Street Austin, Texas 78701 Telephone: (512) 499-8200 Facsimile: (512) 499-8203 Mr. Chris Cagle Texas Bar No. 24048905 The Cagle Law Firm, P.C. 4425 South Mopac Expressway Building II, Suite 105 Austin, Texas 78735 Telephone: (512) 371-6101 Facsimile: (512) 597-3132 Appellate Counsel for Plaintiff: Mr. Paul T. Morin (See Above) Mr. Guillermo Ochoa-Cronfel Texas Bar No. 15175600 2700 Bee Caves Road, Suite 103 Austin, Texas 78746 Telephone: (512) 347-9600 Facsimile: (512) 347-9911 [1] Appellee and Defendant below: Patrick C. Murray (hereafter, “Murray” and/or “Defendant”). Trial Counsel for Defendant: Mr. Brett H. Payne Texas Bar No. 00791417 Ms. Katherine L. “Katie” Sacra McLean Texas Bar No. 24037971 Walters, Balido & Crain, L.L.P. 9020 N. Capital of Texas Highway Building II, Suite 225 Austin, Texas 78759 Telephone: (512) 472-9000 Facsimile: (512) 472-9002 Appellate Counsel for Defendant: Mr. Gregory R. Ave Texas Bar No. 01448900 Walters, Balido & Crain, L.L.P. 10440 North Central Expressway Meadow Park Tower, Suite 1500 Dallas, Texas 75231 Telephone: (214) 347-8310 Facsimile: (214) 347-8311 [2] Table of Contents INDEX OF AUTHORITIES……………………………………………..…………5 STATEMENT OF THE CASE……………………………………………………11 STATEMENT REGARDING ORAL ARGUMENT…………………..…………12 ISSUES PRESENTED....................................................................................…....13 STATEMENT OF FACTS………………………………………………………..16 SUMMARY OF THE ARGUMENT………………………………….………..…25 ARGUMENT AND AUTHORITIES…………………………………………..…26 1. The Jury’s Finding in Question 1, That the Negligence of Guillermo Ochoa-Cronfel Proximately Caused the Injury in Question, is Not Supported by Legally and/or Factually Sufficient Evidence…………...26 2. The Jury’s Finding in Question 2, That Guillermo Ochoa-Cronfel was 45% Responsible for Causing the Injury in Question, is Not Supported by Legally and/or Factually Sufficient Evidence………………………..…27 3. The Jury’s Finding in Question 3(1), That the damages for the physical pain and mental anguish sustained in the past by Guillermo Ochoa- Cronfel as a result of the injury was only $2,500.00, is Not Supported by Legally and/or Factually Sufficient Evidence…………………..………40 4. The Jury’s Finding in Question 3(2), That the damages for the physical pain and mental anguish that, in reasonable probability, Guillermo Ochoa-Cronfel will sustain in the future as a result of the injury was only $1,000.00, is Not Supported by Legally and/or Factually Sufficient Evidence…………………………………………………………….…..50 5. The Jury’s Finding in Question 3(3), That the damages for the physical impairment Guillermo Ochoa-Cronfel sustained in the past as a result of the injury was only $500.00, is Not Supported by Legally and/or Factually Sufficient Evidence…………………………………………..52 [3] 6. The Jury’s Finding in Question 3(4), That the damages for the physical impairment that, in reasonable probability, Guillermo Ochoa-Cronfel will sustain in the future as a result of the injury was only $2,000.00, is Not Supported by Legally and/or Factually Sufficient Evidence………...…53 7. The Jury’s Finding in Question 3(5), That the medical care expenses Guillermo Ochoa-Cronfel incurred in the past as a result of the injury was only $9,345.00, is Not Supported by Legally and/or Factually Sufficient Evidence…………………………………………………………….…..55 8. The Jury’s Finding in Question 3(6), That the medical care expenses that, in reasonable probability, Guillermo Ochoa-Cronfel will incur in the future as a result of the injury was only $3,000.00, is Not Supported by Legally and/or Factually Sufficient Evidence..…………………………56 9. The Jury’s Finding in Question 3(7), That the disfigurement sustained in the past by Guillermo Ochoa-Cronfel as a result of the injury was subject to a ZERO damage award, is Not Supported by Legally and/or Factually Sufficient Evidence…………………………………………………57-58 10.The Jury’s Finding in Question 3(8), That the disfigurement that, in reasonable probability, Guillermo Ochoa-Cronfel will sustain in the future as a result of the injury was subject to a ZERO damage award, is Not Supported by Legally and/or Factually Sufficient Evidence………59 11.The trial court’s sanctions order against Cronfel was an abuse of discretion as Cronfel did not violate the spirit of the prior order complained of in Defendant’s Motion that led to the sanctions order.....62 PRAYER….............................................................................................................66 Certificate of Compliance.......................................................................................68 Certificate of Service..............................................................................................68 Appendix.................................................................................................................69 [4] INDEX OF AUTHORITIES Page(s) Cases Akin, Gump, Strauss, Hauer & Feld, LLP v. Nat’l Dev. & Research Corp., 299 S.W.3d 106 (Tex. 2009)………………………………………………..34 Aguilar v. Morales, 162 S.W.3d 825 (Tex.App.-El Paso 2005, pet. denied)…………………….62 Blake v. Dorado, 211 S.W.3d 429 (Tex.App.-El Paso 2006, no pet.)…………………………62 Cain v. Bain, 709 S.W.2d 175 (Tex. 1986)………………………………………………..28 Carney v. Roberts Inv. Co., 837 S.W.2d 206 (Tex.App.-Tyler 1992, writ denied)……………….27, 28, 32 Ciguero v. Lara, 455 S.W.3d 744 (Tex.App.-El Paso 2015, no pet.)………………….29, 36, 37 Cire v. Cummings, 134 S.W.3d 835 (Tex. 2004)………………………………………………..62 City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005)………………………………………………..27 Clone Component Distribs. Of Am., Inc. v. State, 819 S.W.2d 593 (Tex.App.-Dallas 1991, no writ)………………………….64 Coates v. Whittington, 758 S.W.2d 749 (Tex. 1988)………………………………………………..46 Doctor v. Pardue, 186 S.W.3d 4 (Tex.App.-Houston [1st Dist.] 2005, pet. denied)…………………………………...41, 50, 52, 53, 55, 58, 59 [5] Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472 (Tex. 1995)………………………………………………..36 Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985)………………………………………………..62 Electronic Data Sys. Corp. v. Tyson, 862 S.W.2d 728 (Tex.App.-Dallas 1993, no writ)…………………………65 Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (Tex. 2004)………………………………………………..28 Ford Motor Company v. Tyson, 943 S.W.2d 527 (Tex.App.-Dallas 1997, orig. proceeding)..........................66 Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757 (Tex. 2003)………………………………………………..52 Goldman v. Torres, 341 S.W.2d 154 (Tex. 1960)………………………………………………..58 Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387 (Tex. 1997)………………………………………………..33 Hicks v. Ricardo, 834 S.W.2d 587 (Tex.App.-Houston [1st Dist.] 1992, no writ)……………..50 Hill v. Clayton, 827 S.W.2d 570 (Tex.App.-Corpus Christi 1992, no writ.)…………………56 Hurst v. Kress & Company, et. al., 489 F.2d 168 (5th Cir. 1974)…………………………………………29, 32-33 IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440 (Tex. 1997).....................................................................64-65 In re Doe, 22 S.W.3d 601 (Tex.App.-Austin 2000, orig. proceeding)…………………46 [6] In re Nance, 143 S.W.3d 506 (Tex.App.-Austin 2004, orig. proceeding)………….…….46 Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266 (Tex. 1992).....................................................................64-65 Jones v. Wal-Mart Stores, Inc., 870 F.2d 982 (5th Cir. 1989)……………………………………….………..50 Jordan v. City of Lubbock, 88 S.W.2d 560 (Tex.App.-Amarillo 1935, writ dism’d)…………….29, 32-33 Kahng v. Verity, No. 01-07-00695-CV, 2008 WL 2930195 (Tex.App.-Houston [1st Dist.] July 31, 2008, no pet.)(mem.op)……………………………………………37 Karagounis v. Property of Co. of America, 970 S.W.2d 761 (Tex.App.-Amarillo 1998, pet. denied)…………………..65 Kindred v. Con/Chem, Inc., 650 S.W.2d 61 (Tex. 1983)…………………………………………………28 Koslow’s v. Mackie, 796 S.W.2d 700 (Tex. 1990)………………………………………………..62 Kroger Co. v. Elwood, 197 S.W.3d 793 (Tex. 2006)(per curiam)…………………………………..29 Kroger Co. v. Keng, 23 S.W.3d 347 (Tex. 2000)…………………………………………………29 Kugle v. DaimlerChrysler Corp., 88 S.W.3d 355 (Tex.App.-San Antonio 2002, pet. denied)…………….64-65 Lopez v. La Madeleine of Texas, Inc., 200 S.W.3d 854 (Tex.App.-Dallas 2006, no pet.)…………………….…….64 Lozano v. Lozano, 52 S.W.3d 141 (Tex. 2001)…………………………………………………33 [7] McDonald v. Dankworth, 212 S.W.3d 336 (Tex.App.-Austin 2006, no pet.)………………27, 28-29, 33 Montes v. Pendergrass, 61 S.W.3d 505 (Tex.App.-San Antonio 2001, no pet.).......................29-30, 32 Nat’l Union Fire Ins. Co. v. Wyar, 821 S.W.2d 291 (Tex.App.-Houston [1st Dist.] 1991, no writ.)…………….55 Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex. 1978)……………………………………………......29 Parkway Co. v. Woodruff, 901 S.W.2d 434 (Tex. 1995)…………………………………………….….41 Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442 (Tex. 1989)………………………………………………..28 Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex. 1986)………………………………………………..28 Prescott v. Kroger Co., 877 S.W.2d 373 (Tex.App.-Houston [1st Dist.] 1994, writ denied)…………49 R.K. v. Ramirez, 887 S.W.2d 836 (Tex. 1994)……………………………………………46, 63 Randolph v. Walker, 29 S.W.3d 271 (Tex.App.-Houston [14th Dist.] 2000, pet. denied)…………65 Richards v. Allen, 402 S.W.2d 158 (Tex. 1966)………………………….…….64-65 Rosenboom Mach. & Tool, Inc. v. Machala, 995 S.W.2d 817 (Tex.App.-Houston [1st Dist.] 1999, pet. denied)………….50 Salter v. Galveston, H. & S.A. Ry. Co., 285 S.W. 1112 (Tex.Civ.App. 1926)………………………………..29, 32-33 Standard Fire Ins. Co. v. Morgan, 745 S.W.2d 310 (Tex. 1987)………………………………………………..26 [8] Stromburger v. Turley Law Firm, 251 S.W.3d 225 (Tex.App.-Dallas 2008, no pet.)………………………65-66 Sunbridge Healthcare Corp. v. Penny, 160 S.W.3d 230 (Tex.App.-Texarkana 2005, no pet.)………………………58 Texas & N.O.R. Co. v. Blake, 175 S.W.2d 683 (Tex.Civ.App.-Fort Worth 1943, writ ref’d)………….…..29 TransAmerican Natural Gas v. Powell, 811 S.W. 2d 913 (Tex. 1991)……………………………………………….66 Transit Mgmt. Co. of Laredo v. Sanchez, 886 S.W.2d 823 (Tex.App.-San Antonio 1994, no writ)……………………58 Turner v. Cruz, No. 04-10-00313-CV, 2010 WL 5545392 (Tex.App.-San Antonio Dec. 29, 2010, no pet.)(mem.op.)…………………………………………...37 United Parcel Service, Inc. and Leal v. Rankin, No. 04-14-00494-CV, -- S.W.3d ----, ----, 2015 WL 3503814 (Tex.App.- San Antonio June 3, 2015).............................................................................34 Vicknair v. Peters, No. 12-13-00034-CV, 2014 WL 357082 (Tex.App.-Tyler Jan. 31, 2014, no pet.)(mem.op.)……………………………………………37 W.C. LaRock, D.C., P.C. v. Smith, 310 S.W.3d 48 (Tex.App.-El Paso 2010, no pet.)…………………………..36 Walgreen-Texas Co. v. Shivers, 154 S.W.2d 625 (Tex. 1941)………………………………………………..29 Williamson Co. v. Voss, 284 S.W.3d 897 (Tex.App.-Austin 2009, no pet.)………………………29-30 Statutes, Rules and Other Authorities Tex. Civ. Prac. & Rem. Code §18.001………………………………………….…56 [9] Tex. R. Civ. P. 215…………......………………………………………......…..64-65 Robert W. Calvert, “No Evidence” & “Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362-363 (1960)……………………………………27-28 [10] STATEMENT OF THE CASE Nature of the case: Plaintiff and Appellant Guillermo Ochoa-Cronfel (“Cronfel”) was injured when Defendant and Appellee Patrick C. Murray (“Murray”) lost control of his dog (neither of whom Cronfel saw until after his collision with the dog) while Cronfel was riding his bicycle on a roadway in his neighborhood, and the dog took off running and smashed into Cronfel’s bicycle, sending Cronfel crashing into the hard pavement of the road. Cronfel brought suit against Murray alleging that Murray was negligent (and negligent per se) because he lost control of his dog which then smashed into Cronfel, causing serious injuries to his right elbow, forearm, wrist, and hand. The course of the The jury was instructed that ‘negligence’ means proceedings below: failure to use ordinary care, that ‘ordinary care’ means that degree of care that would be used by a person of ordinary prudence under the same or similar circumstances, and that ‘proximate cause’ means a cause that was a substantial factor in bringing about an event, and without which cause such event would not have occurred. The jury found that: (1) The negligence of both Cronfel and Murray were proximate causes of Cronfel’s injuries; (2) The percentage of responsibility of Cronfel and Murray was 45% and 55%, respectively; and, (3) awarded Plaintiff actual damages totaling $18,345.00. The trial court’s On January 28, 2015, the trial court signed a disposition of the judgment on the jury’s verdict that awarded case: compensatory damages, prejudgment interest, and costs of $14,699.22. On February 24, 2015, Plaintiff filed a motion for new trial and to disregard the jury’s findings, which was denied on April 1, 2015. Plaintiff perfected this appeal by timely filing a notice of appeal on April 24, 2015. [11] STATEMENT REGARDING ORAL ARGUMENT This appeal involves the interplay of Plaintiff’s claims for negligence in a personal injury matter and Defendant’s defensive claim of contributory negligence. The Court should grant oral argument because in the instant case the trial court’s error in failing to grant Plaintiff’s Motion for Judgment Notwithstanding the Verdict, particularly with respect to the jury’s findings on contributory negligence, which were based on legally and/or factually insufficient evidence of same, could have a negative impact on the well-established standards for findings of contributory negligence, inadvertently lowering the burden of proof facing a defendant claiming contributory negligence as an affirmative defense. [12] ISSUES PRESENTED Appellant presents the following issues for review: ISSUE 1: The evidence is legally and/or factually insufficient to support the jury’s answer to Question 1, and its finding that the negligence of Guillermo Ochoa- Cronfel proximately caused the injury in question. The answer was against the great weight and preponderance of the evidence, is manifestly unjust, and was inadequate based on the greater weight and preponderance of the evidence presented at trial. As a result, the trial court erred in denying Plaintiff’s Motion for Judgment Notwithstanding Verdict and his Motion for New Trial. ISSUE 2: The evidence is legally and/or factually insufficient to support the jury’s answer to Question 2(1) and its finding that Patrick Murray was only 55% responsible for the injury and the jury’s answer to Question 2(2) and its finding that Guillermo Ochoa-Cronfel was 45% responsible for the occurrence. These answers were against the great weight and preponderance of the evidence, are manifestly unjust, and were inadequate based on the greater weight and preponderance of the evidence presented at trial. As a result, the trial court erred in denying Plaintiff’s Motion for Judgment Notwithstanding Verdict and his Motion for New Trial. ISSUE 3: The evidence is legally and/or factually insufficient to support the jury’s answer to Question 3(1) and its finding that the damages for the physical pain and mental anguish sustained in the past by Guillermo Ochoa-Cronfel as a result of the injury was only $2,500.00. The answer was against the great weight and preponderance of the evidence, is manifestly unjust, and was inadequate based on the greater weight and preponderance of the evidence presented at trial. As a result, the trial court erred in denying Plaintiff’s Motion for Judgment Notwithstanding Verdict and his Motion for New Trial. Further, the trial court erred in overruling Plaintiff’s objection to the introduction of evidence regarding his past surgeries as to this damage claim, on relevance grounds. ISSUE 4: The evidence is legally and/or factually insufficient to support the jury’s answer to Question 3(2) and its finding that the damages for the physical pain and mental anguish that, in reasonable probability, will be sustained by Guillermo Ochoa-Cronfel in the future was only $1,000.00. The answer was against the great weight and preponderance of the evidence, is manifestly unjust, and was inadequate based on the greater weight and preponderance of the evidence presented at trial. As a result, the trial court erred in denying Plaintiff’s Motion for Judgment Notwithstanding Verdict and his Motion for New Trial. [13] ISSUE 5: The evidence is legally and/or factually insufficient to support the jury’s answer to Question 3(3) and its finding that the damages for physical impairment sustained in the past was only $500.00. The answer was against the great weight and preponderance of the evidence, is manifestly unjust, and was inadequate based on the greater weight and preponderance of the evidence presented at trial. As a result, the trial court erred in denying Plaintiff’s Motion for Judgment Notwithstanding Verdict and his Motion for New Trial. ISSUE 6: The evidence is legally and/or factually insufficient to support the jury’s answer to Question 3(4) and its finding that the damages for physical impairment that, in reasonable probability, Guillermo Ochoa-Cronfel will sustain in the future was only $2,000.00. The answer was against the great weight and preponderance of the evidence, is manifestly unjust, and was inadequate based on the greater weight and preponderance of the evidence presented at trial. As a result, the trial court erred in denying Plaintiff’s Motion for Judgment Notwithstanding Verdict and his Motion for New Trial. ISSUE 7: The evidence is legally and/or factually insufficient to support the jury’s answer to Question 3(5) and its finding that the damages for medical care expenses incurred in the past was only $9,345.00. The answer was against the great weight and preponderance of the evidence, is manifestly unjust, and was inadequate based on the greater weight and preponderance of the evidence presented at trial. As a result, the trial court erred in denying Plaintiff’s Motion for Judgment Notwithstanding Verdict and his Motion for New Trial. ISSUE 8: The evidence is legally and/or factually insufficient to support the jury’s answer to Question 3(6) and its finding that the damages for medical care expenses that, in reasonable probability, Guillermo Ochoa-Cronfel will incur in the future was only $3,000.00. The answer was against the great weight and preponderance of the evidence, is manifestly unjust, and was inadequate based on the greater weight and preponderance of the evidence presented at trial. As a result, the trial court erred in denying Plaintiff’s Motion for Judgment Notwithstanding Verdict and his Motion for New Trial. ISSUE 9: The evidence is legally and/or factually insufficient to support the jury’s answer to Question 3(7) and its finding that the damages for disfigurement sustained in the past was $0.00. The answer was against the great weight and preponderance of the evidence, is manifestly unjust, and was inadequate based on the greater weight and preponderance of the evidence presented at trial. As a result, [14] the trial court erred in denying Plaintiff’s Motion for Judgment Notwithstanding Verdict and his Motion for New Trial. ISSUE 10: The evidence is legally and/or factually insufficient to support the jury’s answer to Question 3(8) and its finding that the damages for disfigurement that, in reasonable probability, Guillermo Ochoa-Cronfel will sustain in the future was only $0.00. The answer was against the great weight and preponderance of the evidence, is manifestly unjust, and was inadequate based on the greater weight and preponderance of the evidence presented at trial. As a result, the trial court erred in denying Plaintiff’s Motion for Judgment Notwithstanding Verdict and his Motion for New Trial. ISSUE 11: The trial court’s monetary sanctions order against Cronfel was an abuse of discretion and should be vacated, or in the alternative, reduced. [15] STATEMENT OF FACTS On the evening of July 23, 2009, around 6:30 P.M., Appellant, Guillermo Ochoa-Cronfel (“Cronfel”) was enjoying a bike ride on the roads of his neighborhood in Travis Country, a subdivision off of Southwest Parkway in South Austin. IV RR 122-23. At or around that same time, Appellee, Patrick Murray (“Murray”) went for a walk with his dog, Magnum. IV RR 202. Sometime between 6:30 P.M. and 7:30 P.M., the paths of Cronfel and Magnum crossed, arising in the incident and injury that were the subject of the underlying lawsuit. IV RR 125-28 (Cronfel), and IV RR 208-213 (Murray). The picture below shows the roadway in the neighborhood where the incident took place. 1 1 VII RR 7, Plaintiff’s Ex. 1. [16] However, at the time of the incident at issue, there were two or more cars parked along the right side of the roadway, and Cronfel was riding his road bike in the direction the cars were parked, approximately 3-4 feet to the left of the cars, to avoid the possibility of being hit by an open (or opening) car door. IV RR 125. Prior to that July, 2009 evening, Cronfel estimated that he had ridden that very route, one of his “usual” and “familiar” routes, hundreds of times from 1995 to the time of the incident. IV RR 123. As Cronfel was riding up the roadway, Murray was walking Magnum along the sidewalk, until Magnum led him at least twenty feet off of the sidewalk into a neighbor’s yard, past a number of trees, and behind a large rock, where the dog relieved itself. IV RR 202-07. Up until that time, Murray had been holding Magnum’s leash in his hand during their walk. IV RR 209-10. However, after the dog had relieved itself, Murray dropped the leash and stepped on it while picking up his dog’s waste. IV RR 209. It was at that time that Magnum barked and took off from his control, with Murray not seeing what he was barking at or where he was going, and doing nothing to try and stop him. IV RR 212. Contemporaneous with Magnum’s nature stop, Cronfel approached that same area of the neighborhood on the adjacent roadway. IV RR 125. Cronfel did not see Murray or Magnum, as he was focused on his bike ride, being careful to avoid obstructions to the side of the road, and what he was doing, and he began to ramp up [17] (pick up speed) in order to get in his exercise. IV RR 125-27. It was then that Cronfel passed by the edge of one of the cars parked along the side of the road, and Magnum shot out from behind the car, colliding with the front wheel of his bike. IV RR 126. This collision resulted in Cronfel being thrown from his bike, at speed, and into the pavement. IV RR 126-28. Cronfel was wearing his cycling helmet at the time of the incident. IV RR 127. Notwithstanding same, Cronfel put his right arm up in front of his face as he was thrown toward the road surface. IV RR 126. As a result, Cronfel’s right arm, and specifically in order; his right wrist, his right forearm, his right elbow, and then his right shoulder, bore the brunt of his impact with the pavement. IV RR 126-27. After hitting the pavement and sliding along the surface, Cronfel came to rest laying in the street, in great pain, scared, and dazed. IV RR 127-28. By that time, Murray had made his way over to the scene of the accident, and while what exactly transpired between Murray and Cronfel at that point is in some dispute, what is clear is that their interaction (such as it was) was brief, and then Murray left the area to find and tend to his dog, leaving Cronfel to his own devices, and the good will of his neighbors.2 IV RR 128-29. Fortunately for Cronfel, his 2 Cronfel testified that Murray tried to help him up by pulling on his then-injured arm, letting him go when Cronfel yelped in pain, and saying something to him (though Cronfel didn’t know what it was) then leaving. IV RR 128-29. Murray testified that he asked Cronfel how he was doing, asked him if he wanted to move, and then left to go after his dog as he was concerned about the dog having been through a traumatic event. IV RR 214-15. [18] other neighbors did, in fact, exhibit a generous good will towards him. A number of people gathered around him, trying to assist him as he sought to regain his bearings. IV RR 129. A man and his wife assisted Cronfel into their nearby house, where they got him some water, ice, and Ibuprofen, and the lady, who turned out to be a nurse, suggested to Cronfel that he would need to go see a doctor for his injuries. IV RR 129-30. These neighbors took care of Cronfel for a while, and eventually loaded Cronfel’s bike into their truck, took him home, and assisted him into his house. IV RR 130. After enduring an extremely restless night, in which he was in pain for the duration, Cronfel visited his general practitioner, Dr. Paul Keinarth, the next day to get a doctor’s assessment of his injuries. IV RR 132. Cronfel presented to Dr. Keinarth with pain in his right shoulder, elbow, wrist, and hand, with swelling in his wrist and hand as well as a limited range of movement. 3 Dr. Keinarth sent Cronfel to Austin Radiological Association to get x-rays of his injured arm that very day, and those x-rays demonstrated a fracture in the radial bone of Cronfel’s forearm, near the elbow. IV RR 133-34, and VII RR 21-22, Plaintiff’s Ex. 2. Dr. Keinarth then referred Cronfel to Dr. Carey Windler at Austin Sports Medicine for further evaluation. IV RR 134. 3 IV RR 132-33, and VII RR 17-20, Plaintiff’s Ex. 2. [19] Cronfel saw Dr. Windler for the first time, regarding the injuries suffered in the incident concerned herein, within a week of having seen Dr. Keinarth, on July 29, 2009. IV RR 135. At that time, Dr. Windler informed Cronfel that there was a possibility the fracture near the elbow would require extensive surgery, including sawing off the head of the radius bone and replacing it with “a fake one”. IV RR 135. However prior to choosing that course of action, Dr. Windler put Cronfel in a sling for a couple of weeks, pending a decision on whether or not the described extensive surgery would be necessary. IV RR 135-36. After a couple of weeks in the sling, Mr. Cronfel went back to Dr. Windler and was informed that he would not need the surgery that had been discussed on the radial fracture, but his arm did have to be fit with a plastic cast (similar to a fiberglass or plaster cast), which he was in for something like four to six weeks. IV RR 136. Over the course of the next few months, leading up to another visit with Dr. Windler in late October, 2009, Cronfel’s radial fracture improved, but all the while the pain in his right wrist continued, unabated. 4 Subsequently, Cronfel began trying to resume his normal activities with pain as a guide to what he should (or should not) engage in, but the right wrist continued to bother him, and on June 14, 2010 he returned to Dr. Windler, who took that opportunity to review the July, 2009 x-rays of Cronfel’s wrist. IV RR 140-41. In 4 IV RR 136-40, and VII RR 24-36, Dr. Windler’s records, admitted as Plaintiff’s Ex. 3. [20] that review, and corresponding examination, Dr. Windler observed widening of the scapholunate interval with a possible fracture of the lunate in Cronfel’s right wrist as another aspect of his July, 2009 injuries. 5 Dr. Windler then set Cronfel up for additional imaging (specifically, an MR arthrogram) at River Ranch Radiology, which took place on June 22, 2010. IV RR 142-43. This additional imaging confirmed a large tear of the scapholunate ligament, degenerative changes in the scaphoid, and a possible fracture off of the triquetrum. IV RR 144-46, and VII RR 25 & 30-34. At that point, Dr. Windler sent Cronfel to a hand specialist, Dr. Robert Walters. IV RR 146. On August 4, 2010, Dr. Walters examined Cronfel and discussed ulna impact syndrome and its related surgical treatment with him, as a potential solution to the pain and problems Cronfel continued to have with his right hand. IV RR 146-47. Dr. Walters explained that the procedure would involve breaking Cronfel’s ulna, sawing off a piece of it to shorten it in order to make it equal to the radius, and putting two metal plates with screws into the arm. IV RR 147-48. Unfortunately, Dr. Walters passed away during the time he was treating Cronfel in 2010. IV RR 157- 58. At that point Dr. Windler’s office referred Cronfel to Orthopaedic Specialists of Austin and Dr. Gregg Vagner. IV RR 158. After seeing Dr. Vagner for a brief time Cronfel sought another referral, and was sent to Dr. Ira Lown. IV RR 159-60. 5 IV RR 141-42, and VII RR 26. [21] Cronfel first visited Dr. Lown on August 11, 2011. IV RR 160. After reviewing Cronfel’s medical records from prior providers, and examining and treating Cronfel himself, it was Dr. Lown’s medical opinion that Cronfel’s injuries, including the ulna impact syndrome and tear of the scapholunate ligament were a result of the July 23, 2009 incident with Murray’s dog, Magnum. 6 Dr. Lown counseled a course of physical therapy, medication, and medical treatments as a means to put off the extreme surgical approach described above for as long as possible. 7 Cronfel continued with this treatment approach for over two years. VII RR 106-218. Finally, on September 11, 2014 Cronfel underwent the ulna shortening procedure, recommended and performed by Dr. Lown. 8 The picture at the top of the next page shows the scar left on Cronfel’s forearm after the procedure. 9 6 IV RR 35-46 (Dr. Lown). 7 IV RR 45-46 (Dr. Lown), IV RR 160 (Cronfel), and VII RR 103-05, Plaintiff’s Ex. 6. 8 IV RR 67 (Dr. Lown), IV RR 163 (Cronfel), and VII RR 267-369, Plaintiff’s Ex. 8. 9 VII RR 8, Plaintiff’s Ex. 1. [22] Unfortunately, the pain and impairment the injuries have caused Cronfel were not completely resolved by the ulna shortening surgery, and he still faces a four- corner fusion surgery on his wrist at some point in the future that will hopefully alleviate some (if not all) of the pain, but which will still leave him with some level of impairment in his right wrist and hand for the rest of his life.10 This negligence case was tried to a Travis County jury over three days. CR 495-503, and Supp. CR 3-6. Throughout the trial – including both the opening statement (IV RR 27) and closing argument (V RR 26 & 36) – Defendant’s counsel 10 IV RR 68-74 & 82-86 (Dr. Lown), and IV RR 168-69 (Cronfel). [23] argued, regarding Cronfel’s own alleged negligence having contributed to his injuries, that he was “revving up” in his bike ride at the time of the incident. Defendant’s counsel further argued (incorrectly) that as a bicycle rider, Cronfel actually had a “heightened duty” of proper lookout to the general public, as he was “up on two wheels”, i.e., higher. V RR 36. The jury ultimately returned a verdict that concluded; (1) the negligence of both Murray and Cronfel were a proximate cause of the incident; and, (2) the percentage of responsibility of Murray and Cronfel was 55% and 45%, respectively. CR 498-99. The jury awarded Cronfel actual damages totaling $18,345.00. CR 500- 01. Judgment was entered on the verdict, taking into account the proportionate responsibilities found by the jury, despite the fact that Cronfel filed a Motion for JNOV and a Motion for New Trial, and this appeal followed.11 Finally, Appellant also complains herein of an Order granting Defendant’s Motion for Sanctions against Cronfel. On October 28, 2014, prior to trial, the Honorable District Judge Gus J. Strauss heard Defendant’s Motion for Sanctions (and its Supplement) requesting sanctions against Cronfel for an alleged violation of a prior Order from the Court, dated September 18, 2014, requiring Cronfel to 11 Supp CR 3-6, CR 519-21, and CR 527-34. [24] produce a signed authorization releasing Dr. Lown’s complete medical chart for Cronfel by September 19, 2014. 12 13 SUMMARY OF THE ARGUMENT Under the uncontroverted facts of the incident concerned herein, no reasonable jury could conclude that Cronfel’s actions were negligent, that such actions proximately caused this incident and/or his attendant injuries, or that Cronfel was 45% responsible for the incident. These facts include that Cronfel was focused on what he was doing (i.e., riding his bicycle on the roadway, being careful to avoid obstructions to the side of the road), that he did not see Murray or his dog until seeing the dog at the instant he was slamming into Cronfel’s bicycle, and that he could have done nothing to have avoided the incident. IV RR 126-27 & 183-85. Thus, the trial court erred in denying Plaintiff’s Motion for Judgment Notwithstanding Verdict and his Motion for New Trial. Further, under the uncontroverted facts of the injuries sustained by Cronfel as a result of the incident, and the medical treatment related to such injuries (both past and future), no reasonable jury could conclude that as a result of his injuries; (i) $2,500.00 would fairly and reasonably compensate Cronfel for physical pain and 12 Judge Strauss was sitting as a Visiting Judge and heard this matter as part of the Travis County District Court’s rotating central docket. 13 II RR 1-26 (Transcript of Hearing on Sanctions), CR 176-364 (Defendant’s Motion & Supplement), CR 384-408 (Plaintiff’s Brief Against Sanctions), CR 409-12 (Defendant’s Objections to Plaintiff’s Brief), and CR 413 (Order). [25] mental anguish sustained in the past; (ii) $1,000.00 would fairly and reasonably compensate Cronfel for physical pain and mental anguish that, in reasonable probability, he would sustain in the future; (iii) $500.00 would fairly and reasonably compensate Cronfel for physical impairment sustained in the past; (iv) $2,000.00 would fairly and reasonably compensate Cronfel for physical impairment that, in reasonable probability, he will sustain in the future; (v) $9,345.00 would fairly and reasonably compensate Cronfel for medical care expenses incurred in the past; (vi) $3,000.00 would fairly and reasonably compensate Cronfel for medical care expenses that, in reasonable probability, he would incur in the future; (vii) $0.00 would fairly and reasonably compensate Cronfel for disfigurement sustained in the past; and, (viii) $0.00 would fairly and reasonably compensate Cronfel for disfigurement that, in reasonable probability, he will sustain in the future. These facts include Cronfel’s medical bills admitted into evidence, as well as the testimony of both Cronfel and Dr. Lown. Thus, the trial court erred in denying Plaintiff’s Motion for Judgment Notwithstanding Verdict and his Motion for New Trial. Finally, the trial court abused its discretion when it sanctioned Cronfel for violating a prior discovery order. ARGUMENT AND AUTHORITIES 1. The Jury’s Finding in Question 1, That the Negligence of Guillermo Ochoa- Cronfel Proximately Caused the Injury in Question, is Not Supported by Legally and/or Factually Sufficient Evidence. [26] 2. The Jury’s Finding in Question 2, That Guillermo Ochoa-Cronfel was 45% Responsible for Causing the Injury in Question, is Not Supported by Legally and/or Factually Sufficient Evidence. The evidence is legally and factually insufficient to support the jury’s finding in Question 1 that the negligence of Guillermo Ochoa-Cronfel proximately caused the injury in question, and such finding is against the great weight of the evidence and is manifestly unjust. I CR 498. A legal sufficiency challenge is also known as a ‘no evidence’ challenge and, “In deciding a ‘no evidence’ point, an appellate court considers only the evidence, and reasonable inferences therefrom, which, when viewed in the most favorable light, support the jury’s answers, rejecting and disregarding all other evidence and reasonable inferences therefrom.” Carney v. Roberts Inv. Co., 837 S.W.2d 206, 208 (Tex.App.-Tyler 1992, writ denied), citing Standard Fire Ins. Co. v. Morgan, 745 S.W.2d 310, 311 (Tex. 1987). A legal sufficiency challenge should be sustained, “…if the record reveals: (a) the complete absence 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 scintilla; or (d) the evidence establishes conclusively the opposite of the vital fact.” McDonald v. Dankworth, 212 S.W.3d 336, 340 (Tex.App.-Austin 2006, no pet.), citing City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005) (citing Robert W. Calvert, “No Evidence” & “Insufficient Evidence” Points of Error, 38 Tex. L. Rev. [27] 361, 362-363 (1960)). Moreover, “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 less than a scintilla and, in legal effect, is no evidence.” McDonald, 212 S.W.3d at 339, citing Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (citing Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). A factual sufficiency, or “insufficient evidence” challenge, requires the reviewing court to, “…consider, weigh, and examine all of the evidence in the record, both supporting and against the finding, to decide whether the verdict should be set aside.” McDonald, 212 S.W.3d at 339, citing Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); See also, Carney, 837 S.W.2d at 208. A factual sufficiency challenge should be sustained, “…only if the evidence that supports the jury finding is so weak as to be clearly wrong and manifestly unjust.” McDonald, 212 S.W.3d at 339, citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); See also, Carney, 837 S.W.2d at 208 (“A reversal is required if this court concludes that the verdict is so against the great weight and preponderance of evidence as to be manifestly unjust.”) Under Texas law, “ ‘[t]he standards and tests for determining contributory negligence ordinarily are the same as those for determining negligence,’ and when contributory negligence is submitted, ‘the burden of proof is on the defendant to prove the defense by a preponderance of the evidence.’ ” McDonald, 212 S.W.3d at [28] 340, citing Carney, 837 S.W.2d at 208. Further, “…contributory negligence is not established by evidence which is equally consistent with the exercise of the care by the plaintiff, or where the inference of due care is just as reasonable as is the inference of the absence thereof.” Jordan v. City of Lubbock, 88 S.W.2d 560, 563 (Tex.App.-Amarillo 1935, writ dism’d), citing Salter v. Galveston, H. & S.A. Ry. Co., 285 S.W. 1112 (Tex.Civ.App. 1926); See also, Hurst v. Kress & Company, et. al., 489 F.2d 168, 171-72 (5th Cir. 1974). That is, “Contributory negligence contemplates an injured person's failure to use ordinary care in regard to his or her own safety.” Kroger Co. v. Keng, 23 S.W.3d 347, 351 (Tex. 2000), citing Parker v. Highland Park, Inc., 565 S.W.2d 512, 520 (Tex. 1978); Walgreen-Texas Co. v. Shivers, 154 S.W.2d 625, 630 (Tex. 1941); Texas & N.O.R. Co. v. Blake, 175 S.W.2d 683, 685 (Tex.Civ.App.-Fort Worth 1943, writ ref’d). In order to establish negligence (and thus, contributory negligence), “…a party must establish a duty, a breach of that duty, and damages proximately caused by the breach.” Ciguero v. Lara, 455 S.W.3d 744, 748 (Tex.App.-El Paso 2015, no pet.), citing Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006)(per curiam). In the instant case, the duty(ies) that could reasonably be ascribed to Appellant, which Appellee was required to prove Appellant breached by a preponderance of the evidence, were; (i) the general duty to exercise ordinary care; and, (ii) the general duty to keep a proper lookout. See Williamson Co. v. Voss, 284 S.W.3d 897, 902 [29] (Tex.App.-Austin 2009, no pet.), and Montes v. Pendergrass, 61 S.W.3d 505, 509 (Tex.App.-San Antonio 2001, no pet.). The evidence presented at trial in this matter regarding the incident that led to Appellant’s injury, and the negligence (or lack thereof) of Appellant and/or Appellee was simple and straightforward. The only factual testimony regarding the incident came from Mr. Ochoa-Cronfel and Mr. Murray. Both men testified that the incident took place on the evening of July 23, 2009, somewhere between 6:00 and 7:30 P.M. IV RR 122-23 (Ochoa-Cronfel) & IV RR 202 & 208 (Murray). A review of the record demonstrates only the following evidence, and reasonable inferences therefrom, which, when viewed in the most favorable light, could remotely support the jury’s answers to Questions Nos. 1 and/or 2: 1. Cronfel was “revving up”, i.e., picking up speed on his bicycle ride in an attempt to get a good workout in, at or immediately before the collision with Murray’s dog;14 2. Cronfel was focused on what he was doing, i.e., riding his bicycle on the roadway, being careful to avoid obstructions to the side of the road; 15 and, 14 IV RR 126-27, 180, 182, and 185; 15 IV RR 126. [30] 3. Cronfel did not see Murray or his dog standing twenty or more feet off of the roadway, past a number of trees and a big, big rock, and through two or more cars lining the side of the road, before the collision with Murray’s dog. 16 The foregoing evidence, even when viewed in the light most favorable to the jury’s finding of contributory negligence against Cronfel, falls well short of meeting the standard. Moreover, no one testified that Cronfel was doing anything wrong or riding his bicycle negligently. In fact, Murray testified that he knew next to nothing about the circumstances of the incident: Q: Okay. So it’s your testimony that you didn’t see Mr. Cronfel biking down the street? A: Not at all, no, sir. --IV RR 208. Q: So the next thing you know your dog barks and takes off; is that right? A: I don’t know if he barked or not. Q: You don’t know if he barked? Didn’t you say in your deposition that he barked and then he took off? A: I don’t know. Q: Did you – did you see your dog take off? A: I did not. Q: All right. And since you read your deposition on Sunday, the question was asked of you, But you didn’t see him take off? You answered, No, 16 IV RR 124-26, 180-182 (Cronfel); IV RR 203-06 (Murray); and, VII RR 7, Plaintiff’s Ex. 1. [31] I mean, I just heard him take off. I mean that – that’s kind of a bark and takeoff type – type – type of action. Do you recall that? A: If that’s what it says right there, then I don’t disagree. Q: All right. Did – did you know what the dog was barking at? A: No, sir. Q: When he immediately takes off, what action do you do to try and stop him? A: I didn’t – I didn’t do anything. I mean, when I turned around is when the accident occurred. --IV RR 211-12. Q: Now, do you have any knowledge of any facts that Mr. Cronfel did anything wrong in this collision with your dog? A: I don’t know what he did because I did not see him. Q: Okay. So you don’t have any facts to base on that – A: I don’t know. I did not see what he was doing. --IV RR 217. The duty to keep a proper lookout, “…encompasses the duty to observe, in a careful and intelligent manner, traffic and the general situation in the vicinity, including speed and proximity of other vehicles as well as rules of the road and common experience.” Montes, 61 S.W.3d at 509, citing Carney, 837 S.W.2d at 211. Further, “…contributory negligence is not established by evidence which is equally consistent with the exercise of care by plaintiff, or where the inference of due care is just as reasonable as is the inference of the absence thereof.” Jordan, 88 S.W.2d, [32] at 563, citing Salter, 285 S.W., at 1112; see also, Hurst, 489 F.2d, at 172. This demonstrates the application of the ‘equal inference rule’, to cases involving negligence and/or contributory negligence circumstances. The ‘equal inference rule’ states, “…a jury may not reasonably infer an ultimate fact from meager circumstantial evidence, ‘which could give rise to any number of inferences, none more probable than another.’” Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex. 2001), citing Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex. 1997). Here, even when reviewing the evidence of Cronfel’s “negligence” in the light most favorable to the jury’s findings, it is just as reasonable (if not more so) to infer that Cronfel was keeping a proper lookout than that he was not. There is no evidence, or no more than a scintilla of evidence, that Cronfel was not keeping a proper lookout. Again, a mere surmise or suspicion or speculation of evidence of Cronfel’s negligence, is less than a scintilla, and is really no evidence at all. McDonald, 212 S.W.3d at 339 (internal citations omitted). And here, the evidence of Cronfel’s negligence was so threadbare that Defendant’s counsel actually invited the jury to do just that…to surmise, or speculate, as to what the evidence could have or should have shown, not what it actually did show: Mr. Payne: And so we have to ask ourselves, what – could Mr. Cronfel have done something to have avoided this? Could he have not revved up? Could he have applied his brakes? Could he have swerved? Did he, in fact, have an opportunity to have avoided this accident? --V RR 26. [33] “Evidence does not exceed a scintilla if it is so weak as to do no more than create a mere surmise or suspicion that the fact exists.” United Parcel Service, Inc. and Leal v. Rankin, No. 04-14-00494-CV, -- S.W.3d ----, ----, 2015 WL 3503814, at *3 (Tex.App.-San Antonio June 3, 2015), citing Akin, Gump, Strauss, Hauer & Feld, LLP v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 115 (Tex. 2009). There was no evidence presented that Cronfel did, or could have done, any of those things, so the finding that he was contributorily negligent was founded on mere speculation, was supported by no more than a scintilla of evidence, or, in fact, the opposite (that Cronfel was not negligent in any respect) was conclusively established by the evidence presented. That is, there was not legally sufficient evidence from which a jury could reasonably have found that Cronfel violated any duty, such that he could be found contributorily negligent. Assuming arguendo one thought it were reasonable to infer that Cronfel had breached a duty such that he could be found contributorily negligent, there is likewise a lack of any evidence that such negligence was a proximate cause of the incident concerned herein. As noted above, Murray testified that he never saw Cronfel until after the collision between Cronfel and Murray’s dog, and that he didn’t see what happened. IV RR 208, 211-212 & 217. Cronfel testified on direct examination that there was nothing he could have done to have avoided the incident: [34] Q: As you approached these cars over by the curb, did you see the defendant or his dog at all? A: No, I didn’t see either of them. … Q: And you didn’t see the defendant or his dog on the sidewalk or anything like that? A: No, I – I never saw them. --IV RR 125. Q: Looking back at – at the scene of – of this incident, were the cars obscuring your view of the defendant and his dog, do you think? A: I did not see them. I think that that would be the case. Q: Did you have any time to react or avoid the dog? A: I was – the dog was on top of me. I had no time to react, no. --IV RR 126-27. And under cross-examination, Cronfel maintained this testimony: Q: Do you know the distance separating you and Magnum, the dog, as you noticed that something may occur? A: He was on top of me when I noticed. It was already – he was already on top of me practically. Q: Now, when you say on top of you, you don’t literally mean on you? A: No. He was – he came out from behind a car, or, you know, he was coming out from behind a car. When I noticed him, he was already almost making contact with the bike. It was a very short distance. --IV RR 183-84. [35] Q: Okay. As you’re going pretty fast and revving up, the dog has an opportunity to travel four feet into the side of your wheel, three feet out from a parked car as you traveled up this roadway? A: You know, you can come up with numbers. All I can tell you is that he came into my bike from the side, and I had no chance to react or avoid him. Q: And you agree you did not react; you did not shift to the left or the right; brake; do anything to avoid the accident/ A: I had no chance. Q: I’m sorry? A: I had no chance. --IV RR 185. “Proximate cause consists of two substantive elements – cause in fact and foreseeability. W.C. LaRock, D.C., P.C. v. Smith, 310 S.W.3d 48, 55-56 (Tex.App.-El Paso 2010, no pet.). ‘Cause in fact is not shown if the defendant’s negligence did no more than furnish a condition which made the injury possible.’ Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). ‘The evidence must go further, and show that such negligence was the proximate, and not the remote, cause of resulting injuries and justify the conclusion that such injury was the natural and probable result thereof.’ Id.” -- Ciguero, 455 S.W.3d, at 748. While Ciguero dealt with an adverse no-evidence summary judgment, the only evidence presented as to the “motorist’s” negligence being a proximate cause of the incident in question, was the motorist’s own testimony that he could not have avoided the incident, just like the testimony of Cronfel in the instant case. The Ciguero court examined three other, similar cases involving motorists’ duty to keep a lookout and proximate cause. In each of those cases, the only evidence that a [36] motorist’s negligence was subsequently the proximate cause of the incident complained of, was the motorist’s testimony that he did not have time to react and/or could not have avoided the incident in question. About this circumstance the Ciguero court held, “A driver’s testimony that a collision occurred concurrent with or immediately preceding his recognition of a road hazard, standing alone, constitutes no evidence on the issue of proximate cause because it does not raise a fact issue on whether the accident could have been avoided.” Ciguero, 455 S.W.3d, at 749. See also, Kahng v. Verity, No. 01-07-00695-CV, 2008 WL 2930195, at *1, 5 (Tex.App.-Houston [1st Dist.] July 31, 2008, no pet.)(mem.op); Vicknair v. Peters, No. 12-13-00034-CV, 2014 WL 357082, at *4 (Tex.App.-Tyler Jan. 31, 2014, no pet.)(mem.op.); and, Turner v. Cruz, No. 04-10-00313-CV, 2010 WL 5545392, at *4 (Tex.App.-San Antonio Dec. 29, 2010, no pet.)(mem.op.). As in Ciguero, in the instant case, Cronfel’s testimony alone, “…creates no more than a surmise or suspicion that any breach of the duty to…keep a proper lookout was a proximate cause of the collision.” Ciguero, 455 S.W.3d, at 749. There was no evidence presented that Cronfel could have done anything to have avoided the incident, so the finding that any of Cronfel’s alleged contributory negligence was a proximate cause of the incident was founded on mere speculation, was supported by no more than a scintilla of evidence, or, in fact, the opposite (that Cronfel was not negligent in any respect) was conclusively established by the [37] evidence presented. That is, Murray did not even attempt to prove, much less prove, that his dog would not have collided with Cronfel had Cronfel done something, anything differently. Thus, there was not legally sufficient evidence from which a jury could reasonably have found that Cronfel’s alleged contributory negligence, if any, could have been a proximate cause of the incident and injuries concerned herein. If Appellant’s legal sufficiency challenge to the jury’s findings of his contributory negligence and/or its proximate cause of the incident/injuries in question demonstrates that there is not even a scintilla (and certainly, no more than a scintilla) of evidence to support those findings, then Appellant’s factual sufficiency challenge surely shows that these findings were clearly wrong and manifestly unjust. As noted above, the only evidence from which the jury could have inferred Cronfel’s alleged contributory negligence, or its proximate cause of the incident and injuries, was Cronfel’s own testimony that he was “revving up”, focused on what he was doing, and did not see Murray or his dog until at (or immediately preceding) the collision.17 The additional evidence regarding the incident, consisting of Murray’s testimony, affirmatively shows that the incident was caused solely by Murray’s losing control of his dog, and failure (or inability) to do anything to regain control of his dog prior to its violent collision with Cronfel. IV RR 210-13. That is, there was not factually sufficient evidence from which a jury could reasonably have found 17 See FNs 14-16, supra. [38] that Cronfel’s alleged contributory negligence, if any, proximately caused the incident and injuries concerned herein. This case is very like the Carney case, noted above, where the Tyler Court of Appeals properly considered the lack of evidence after a jury finding of contributory negligence and reversed and remanded. Here, no one testified that Cronfel was doing anything wrong or riding his bike negligently. The only evidence remotely related to negligence was Murray’s own testimony that he lost (or in fact, relinquished) control of his dog, which then took off so fast that by the time Murray had stood up and turned to look, it had collided violently with Cronfel, sending him crashing at speed into the hot July pavement. There is no evidence and/or insufficient evidence to support the jury’s answers to questions 1, 2(1) and 2(2), thus the jury’s answers to those questions were based on nothing more than pure speculation, surmises, or suspicions, and not on the evidence. Further, the trial court erred when it denied Plaintiff’s Motion for Judgment Notwithstanding the Verdict on his own negligence/contributory negligence, and this Court should do as the Carney court did. These issues should be sustained, the judgment should be reversed, and this Court should remand the cause to the trial court for a new trial. To do otherwise would lower the burden on defendants claiming contributory negligence as an affirmative defense, to well below the required preponderance of the evidence. [39] 3. The Jury’s Finding in Question 3(1), That the damages for the physical pain and mental anguish sustained in the past by Guillermo Ochoa-Cronfel as a result of the injury was only $2,500.00, is Not Supported by Legally and/or Factually Sufficient Evidence. Further, the trial court erred in overruling Plaintiff’s objection to the introduction of evidence regarding his past surgeries as to this damage claim, on relevance grounds. The legal and factual sufficiency standards of review noted above, with respect to Appellant’s points of error on contributory negligence, apply with equal force to Appellant’s points of error regarding the insufficiency of the damages found by the jury in this case. The court’s charge asked the jury what sum of money would fairly and reasonably compensate Cronfel for his injuries that resulted from the incident in question, for the following elements of damages; (i) physical pain and mental anguish sustained in the past; (ii) physical pain and mental anguish that, in reasonable probability, Cronfel will sustain in the future; (iii) physical impairment sustained in the past; (iv) physical impairment that, in reasonable probability, Cronfel will sustain in the future; (v) medical care expenses incurred in the past; (vi) medical care expenses that, in reasonable probability, Cronfel will incur in the future; (vii) disfigurement sustained in the past; and, (viii) disfigurement that, in reasonable probability, Cronfel will sustain in the future. CR 500-01. Further, the charge asked the jury to not award any sum of money on any element if it had otherwise, under some other element, awarded a sum of money for the same loss, to avoid compensating Cronfel twice for the same loss. CR 500. [40] “In order to recover mental anguish damages, a plaintiff must establish ‘a high degree of mental pain and distress’ that is ‘more than mere worry, anxiety, vexation, embarrassment, or anger.’” Doctor v. Pardue, 186 S.W.3d 4, 18 (Tex.App.-Houston [1st Dist.] 2005, pet. denied), citing Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995). While this may be a nebulous standard, direct evidence of the nature, duration, and severity of a claimant’s mental anguish, “…whether in the form of the claimants’ own testimony, that of third parties, or that of experts, is more likely to provide the fact finder with adequate details to assess mental anguish claims.” Parkway Co., 901 S.W.2d, at 444. In the instant case, Cronfel testified at length regarding the physical pain and mental anguish the incident and its attendant injuries had caused him up to the time of trial, and presented medical records that demonstrated same: • The collision with Murray’s dog caused Cronfel to impact the roadway violently, causing him to feel “great pain” as soon as he hit the pavement, and slid along the granular road surface that was burning hot from the intense July sun, and the pain was severe enough that Cronfel feared that something was “really wrong”. IV RR 127-28. • Cronfel continued to feel pain throughout the night of the incident, and could not sleep well as a result. The pain continued the next day, so Cronfel went to see his general practitioner, Dr. Paul Keinarth. IV RR 131-132. • Dr. Keinarth’s records from Cronfel’s above-referenced visit document the pain that Cronfel continued to feel in his right shoulder, elbow, wrist, and hand. VII RR 18-22, Plaintiff’s Exh. 2. • Within less than a week of his visit to Dr. Keinarth, Cronfel had been referred to Dr. Carey Windler of Austin Sports Medicine by Dr. Keinarth for further [41] evaluation. Dr. Windler’s records from this initial visit document that Cronfel continued to present with pain in his right arm. VII RR 29, Plaintiff’s Exh. 3. • Dr. Windler explained to Cronfel that he may be facing an extensive surgery on his elbow, which would include sawing off the head of the radius. This caused Cronfel anxiety and stress, manifesting itself in panicked thoughts, sleepless nights, and nausea over the couple of weeks following his first visit to Dr. Windler, as he contemplated the proposed surgery. IV RR 135-36. • After that initial visit with Dr. Windler, Cronfel returned for further evaluation. Dr. Windler’s records from this second visit document that Cronfel continued to present with pain in his right arm. VII RR 28, Plaintiff’s Exh. 3. • At that time, Cronfel was fitted with a plastic cast on his right arm that he would wear for another four to six weeks. Over the ensuing weeks, the arm continued to cause Cronfel great pain on a daily basis, again causing him great difficulty in sleeping. Cronfel described the pain at this time as a “10” on a scale of 1 to 10. IV RR 136-37. • Cronfel also described the difficulties he had during this time with everyday activities such as writing, cooking, and even going to the bathroom. IV RR 138. • In October, 2009, just less than three months after the incident, Cronfel again returned to Dr. Windler for evaluation. While by this time the pain in his elbow had finally begun to subside, the pain in his wrist continued, unabated. IV RR 139 & VII RR 27, Plaintiff’s Exh. 3. • After the October, 2009, visit, at the recommendation of Dr. Windler, Cronfel attempted to go back to his normal, daily activities, with pain as his guide. But the pain in his wrist didn’t go away, and in June, 2010, Cronfel paid Dr. Windler another visit. IV RR 140-41. • At that time, after reviewing the July, 2009 x-rays that were contemporaneous with Cronfel’s injuries, Dr. Windler suggested he undergo an MR arthrogram, in order to determine the extent of the damage to his right wrist. Cronfel in fact undertook this additional procedure, which subjected him to additional [42] physical pain in the form of an anesthetizing shot as well as an even more painful shot of dye, right into the joint of his wrist. IV RR 143-44. • After the above-referenced arthrogram procedure, Cronfel was sent to a hand specialist, Dr. Robert Walters, and he saw Dr. Walters for the first time on August 4, 2010. At that appointment, Dr. Walters explained to Cronfel that he had a condition known as ulnar impact syndrome, and that it would need to be treated surgically, via a procedure in which they would break Cronfel’s ulna, saw off a piece of it, and put two plates and screws into his arm. Understandably, Dr. Walters’ explanation of this new, extreme-sounding surgery caused Cronfel to revisit all the shock, anxiety, and nausea that he’d previously experienced when discussing the similar proposed surgery on his elbow. IV RR 147-48 & VII RR 66-67, Plaintiff’s Exhibit 4. • Unfortunately, Dr. Walters passed away while treating Cronfel during 2010, and prior to performing the ulnar impact surgery described above. Subsequently, Cronfel was referred to another hand specialist, Dr. Gregg Vagner. While Cronfel only had one appointment with Dr. Vagner, in March, 2011, he again presented with continued, worsened pain in his right wrist. IV RR 158-59 & VII RR 89-91, Plaintiff’s Exhibit 5. • Cronfel’s final referral was to Dr. Ira Lown, another hand specialist, who would ultimately perform the ulnar impact surgery described above. Cronfel began seeing Dr. Lown in August, 2011. At his first appointment with Dr. Lown, Cronfel learned he would indeed have to undergo the ulnar impact surgery. IV RR 160. • At that first meeting, Dr. Lown advised Cronfel to put off the surgery as long as possible and undergo regime of physical therapy and constant pain management that ultimately lasted approximately three years. IV RR 161- 163. • In September, 2014, Cronfel finally underwent the ulnar impact surgery, and in the weeks leading up to the surgery, Cronfel again experienced the anxiety, panic, sleeplessness, nausea, and concern that went along with the prospect of this highly invasive procedure. IV RR 165. • Immediately after the surgery, Cronfel experience terrible pain had had to undergo a nerve block to manage that pain, which continued for about twenty- [43] four hours after surgery. And even after that, prior to the trial held in this matter in November, 2014, Cronfel continued to experience the pain in his wrist. IV RR 166-67. • Dr. Lown’s extensive medical records on Cronfel further document the pain that he continued to endure throughout Dr. Lown’s treatment of him. VII RR 94-223, Plaintiff’s Exhibit 6. In fact, Dr. Lown further testified that the ulnar impact surgery that he performed on Cronfel is, in his experience, “one of the more painful” surgeries to deal with from a post-operative pain level. IV RR 77. Tellingly, Defendant did not present an expert of his own (or indeed, any witness) to attempt to controvert any of the medical records, the expert medical testimony of Dr. Lown, or Cronfel’s testimony as to the past physical pain and mental anguish he sustained as a result of the incident and his attendant injuries. In fact, Defendant’s only attempt to address these issues came in his cross- examinations of Cronfel and Dr. Lown. With respect to Cronfel, this was limited to a brief discussion of his daily activities post-incident, and past surgeries: Q: Okay. Now you agree that – at least when I took your deposition, in October, about a year ago, as of a year ago, you were still doing push- ups, correct? A: Yes, sir. Q: And about a year ago, you were still doing pull-ups, correct? A: Under the supervision of a therapist and a trainer, yes, sir. Q: Any you continued to ride your road bike and your mountain bike, correct? A: Yes, sir. Q: And you continued to lift weights, correct? [44] A: Reduced reps and amounts of weights, yes, sir. Q: And you continued to water ski? A: I water skied once. --IV RR 186-87. Q: Mr. Cronfel, in the past you have had several procedures – other surgical procedures done to your knees, correct? A: Yes, sir, over the last 30 years I’ve had several procedures. Q: You have had a total knee replacement performed to your right knee in August of 2010, correct? A: Yes, sir. Q: You have hardware present in your body in terms of a new knee, correct? A: Yes, sir. Q: And you have had multiple injections to your knees in the past, correct? A: Yes, sir. --IV RR 191-92. At trial, Defendant’s counsel argued that he should be able to question Cronfel regarding the above-described other surgeries he had gone through because Cronfel had testified about the fear, anxiety, pain, etc…associated with the instant injuries, and the prospects of surgery(ies) related to those instant injuries. Cronfel’s counsel objected, as to the relevance of unrelated surgeries that Cronfel had undergone. Initially, the trial court sustained Cronfel’s objection, but after reconsidering, [45] changed its mind. Cronfel’s counsel renewed his objection, the trial court overruled same, and the question-answer noted above then ensued. IV RR 187-91. The trial court’s admission of evidence of these past injuries insofar as they allegedly related to Cronfel’s claims for pain and mental anguish associated with the present injury was clear error. “Whether a plaintiff’s condition is a ‘part’ of a claim is determined from the pleadings…” In re Nance, 143 S.W.3d 506, 511 (Tex.App.- Austin 2004, orig. proceeding), citing R.K. v. Ramirez, 887 S.W.2d 836, 840 (Tex. 1994); see also, In re Doe, 22 S.W.3d 601, 609 (Tex.App.-Austin 2000, orig. proceeding). Here Cronfel’s pleadings allege only facts and circumstances surrounding the 2009 injury arising from his collision with Murray’s dog and the damages suffered as a result thereof. CR 12-18. Moreover, Murray’s pleadings also did not plead any defensive theory related to preexisting condition. CR 10-11 & 19- 20. And even if they had, “…that defensive theory is in the nature of an inferential rebuttal, not an ultimate issue of fact that alone has legal significance.” Nance, 143 S.W.3d, at 512-13, citing R.K., 887 S.W.2d, at 843. It is well settled that a tortfeasor takes a plaintiff as he finds him. Coates v. Whittington, 758 S.W.2d 749, 753 (Tex. 1988); See also Nance, 143 S.W.3d, at 512; In re Doe, 22 S.W 3d, at 606. That is, regardless of Cronfel’s past surgeries (or lack thereof) he is entitled to recover damages resulting from the collision with Murray’s dog, conditioned as he was at the time of the incident. See Coates, 758 S.W.2d, at 753 (internal citations omitted). [46] Absent a showing of some connection to Cronfel’s pain and mental anguish arising from this incident, a showing that Murray did not even attempt to make, Cronfel’s past surgeries have zero relevance to the damages attributable to his collision with Murray’s dog, and their introduction was both harmful and prejudicial to Cronfel when it came time for the jury to decide on this element of damages. With respect to Dr. Lown, Defendant’s attempts to controvert Cronfel’s evidence of past physical pain and mental anguish were similarly limited to a brief discussion of Cronfel’s daily activities post-incident, and other injuries that Cronfel had suffered. Dr. Lown testified (like Cronfel) that post-injury, Cronfel continued to try and maintain his exercise and fitness regime, also with the guidance and assistance of Dr. Lown’s physical therapist. IV RR 96-99. Dr. Lown also testified that during his treatment of Cronfel (and post-incident), that Cronfel had an injury in August, 2012 to his left wrist that required surgery. IV RR 99. On re-direct, in summing up his opinions on Cronfel’s injuries, Dr. Lown testified as follows: Q: Doctor, hi. I – you just answered a lot of questions about stuff that happened in August of 2012 and all throughout the year 2012. Do you recall that line of questioning? A: Yes, I do. Q: Well, I want to look through your notes. In looking at the very first page of your records when you – when you very first saw Mr. Cronfel on August 11th, 2011 – I mean, I went to A&M, but that’s a whole year before August 2012, right? A: That’s correct. [47] Q: And can you tell me, under Plan, from August 11th, 2011, did you have an opinion at that time after putting your hands on Mr. Cronfel and examining his medical records, his chart notes, and doing your physical examination, what medical procedures on August 11th, 2011, did you think were appropriate for Mr. Cronfel? A: We discussed the ulnar shortening and the four-corner fusion. Q: So wait – so – oh, so you did discuss the four-corner wrist fusion in August 2011? A: Yes, we did. Q: And that was well before any of these notes that you just got all these questions about in August 2012? A: That’s correct. Q: Do you have an opinion, Doctor, as to whether or not Guillermo was a surgical candidate for the wrist fusion surgery in August 2011, regardless what happened after that? A: Yes. At that time he was. Q: And I mentioned earlier today that, you know, Mr. Cronfel could have been a participant in the world’s strongest man competition even, but it wouldn’t have mattered if it was after August 2011, would it, to you? A: The damage was already done. Q: And the damage was already done, and the surgery was already going to have to be had. Is that true? A: Yes. --IV RR 114-15. Q: I just want to make clear. And after answering Mr. Payne’s questions, have your opinions changed at all as Mr. Cronfel’s treating physician that, other than this July 23rd, 2009 injury, would Mr. Cronfel need this ulnar shortening surgery or would he need the wrist fusion? [48] A: No, he would not. Q: And that’s based on your skills, experience, training, and reasonable medical probability? A: That’s correct. --IV RR 117-18. No evidence was presented that Cronfel did not suffer the past physical pain and mental anguish he claimed, nor was any evidence presented that Cronfel’s past physical pain and mental anguish was minimal. Defendant’s “controverting” position seemed to be that other physical ailments, perhaps associated with previous (or other) injuries, contributed to Cronfel’s complaints. A similar attack was deemed insufficient to support an award of zero damages for past pain and suffering by the Houston 1st District Court of Appeals: “Appellees argue other physical ailments not attributable to this injury contributed to appellant’s complaints, and therefore a zero award is not against the great weight and preponderance of the evidence. However, the jury did award appellant damages for past medical expenses attributable to the Kroger incident. Therefore, the testimony shows the surgery and other medical treatment were a result of the accident at issue, rather than his previous injuries. Other injuries could not have been responsible for any pain associated with procedures directly attributable to this injury. Further, appellees offered no medical testimony linking any previous injuries to present evidence of pain.” --Prescott v. Kroger Co., 877 S.W.2d 373, 375 (Tex.App.-Houston [1st Dist.] 1994, writ denied). While the jury in the instant case did not award zero damages for Cronfel’s past physical pain and mental anguish, given the extensive testimony and medical record [49] evidence presented in support thereof and the lack of any real controverting evidence, the jury’s award of $2,500.00 in answer to question 3(1) is supported by no evidence and/or insufficient evidence, is so against the great weight and preponderance of the evidence as to be manifestly unjust, and the court should reverse and remand for a new trial as a result. 4. The Jury’s Finding in Question 3(2), That the damages for the physical pain and mental anguish that, in reasonable probability, Guillermo Ochoa- Cronfel will sustain in the future as a result of the injury was only $1,000.00, is Not Supported by Legally and/or Factually Sufficient Evidence. “Texas follows the ‘reasonable probability rule’ for future damages for personal injuries.” Doctor, 186 S.W.3d, at 20, citing Rosenboom Mach. & Tool, Inc. v. Machala, 995 S.W.2d 817, 828 (Tex.App.-Houston [1st Dist.] 1999, pet. denied). As such, to recover damages for future physical pain and mental anguish, Cronfel must show there is a reasonable probability of his sustaining same as a result of the injuries concerned herein. Moreover, while matters of pain and mental anguish are speculative, “…once it has been proved by objective evidence that an injury will continue adversely to affect plaintiff, the jury may not give a take-nothing verdict for future pain, suffering, and mental anguish.” Hicks v. Ricardo, 834 S.W.2d 587, 591 (Tex.App.-Houston [1st Dist.] 1992, no writ), citing Jones v. Wal-Mart Stores, Inc., 870 F.2d 982, 988 (5th Cir. 1989). Here, we are not dealing with a zero damage award, but the findings are still inconsistent. The record shows objective evidence that Cronfel’s injuries as a result of the collision with Murray’s dog will continue to [50] adversely affect him in the future, in a similar way to the effect it has had on him from the time of the incident to the present. Nevertheless, the jury actually awarded less than half of the amount for future damages for pain and anguish than it did for past pain and anguish, despite the fact that in reasonable probability Cronfel’s future pain and anguish will extend far beyond the approximately five and a half years that had elapsed between the incident and trial. With respect to the probable future physical pain and mental anguish he would suffer as a result of his injuries, Cronfel testified that he was scared about his future given the years of pain and problems he has already endured, and the prospect of an additional future surgery that would leave him permanently impaired, and might still not relieve the pain he feels on a daily basis. IV RR 174. Dr. Lown then further testified regarding the wrist fusion surgery that Cronfel still faces, and the fact that successful or not he faces the real possibility of continued pain in his wrist into the future. IV RR 84-86. Defendant offered no evidence, testimony or otherwise, to controvert Cronfel’s evidence as to his probable future physical pain and mental anguish. Again, while the jury in the instant case did not award zero damages for Cronfel’s probable future physical pain and mental anguish, given the testimony and medical record evidence presented in support thereof and the lack of any controverting evidence, the jury’s award of $1,000.00 in answer to question 3(2) is supported by [51] no evidence and/or insufficient evidence, is so against the great weight and preponderance of the evidence as to be manifestly unjust, and the court should reverse and remand for a new trial as a result. 5. The Jury’s Finding in Question 3(3), That the damages for the physical impairment Guillermo Ochoa-Cronfel sustained in the past as a result of the injury was only $500.00, is Not Supported by Legally and/or Factually Sufficient Evidence. “In order to recover damages for physical impairment, ‘the effect of any physical impairment must be substantial and extend beyond any pain, suffering, mental anguish, lost wages or diminished earning capacity,’ [and the] ‘loss of enjoyment of life’ may be considered as a factor in assessing damages for physical impairment.” Doctor, 186 S.W.3d, at 18, citing Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 772 (Tex. 2003). Again, Cronfel testified at length regarding the past physical impairment that the injuries resulted in: • Immediately following the incident, Cronfel experienced swelling and a limited range of motion with his right wrist. IV RR 133. Dr. Keinarth’s contemporaneous medical records confirm this. VII RR 18-20, Plaintiff’s Exh. 2. • In fact, impairments in the range of motion in his wrist were noted in the medical records of all of his subsequent medical providers as well. VII RR 26-27 & 30-31, Plaintiff’s Exh. 3 (Dr. Windler); VII RR 66-67, Plaintiff’s Exhibit 4 (Dr. Walters); VII RR 89-91, Plaintiff’s Exhibit 5 (Dr. Vagner); and, VII RR 94-96, 103-77 & 190-223, Plaintiff’s Exhibit 6. • The repetition and intensity of Cronfel’s exercise programs had to adjust to account for the impairment caused by his injuries. This also included [52] his removing certain activities, e.g., bowling, from the list of activities he could still engage in. IV RR 172. As with Cronfel’s past physical pain and mental anguish, the only controverting evidence Defendant adduced with respect to his past physical impairment was Cronfel’s above-referenced testimony that he continued to try and live his life. There was no evidence presented that Cronfel was not, in fact, suffering the levels of physical impairment to which he testified, or which was documented by the medical records. Again, while the jury in the instant case did not award zero damages for Cronfel’s past physical impairment, given the testimony and medical record evidence presented in support thereof and the lack of any controverting evidence, the jury’s award of $500.00 in answer to question 3(3) is supported by no evidence and/or insufficient evidence, is so against the great weight and preponderance of the evidence as to be manifestly unjust, and the court should reverse and remand for a new trial as a result. 6. The Jury’s Finding in Question 3(4), That the damages for the physical impairment that, in reasonable probability, Guillermo Ochoa-Cronfel will sustain in the future as a result of the injury was only $2,000.00, is Not Supported by Legally and/or Factually Sufficient Evidence. As with future pain and mental anguish, the standard for future physical impairment is that of “reasonable probability”. Doctor, 186 S.W.3d, at 20. And once again, here the evidence presented was in the form of the testimony of Cronfel’s treating physician, Dr. Lown. In describing the sort of impairment that Cronfel [53] would face in the future, after undergoing the additional, wrist fusion surgery that would be necessary, Dr. Lown testified as follows: Q: I think you can sit down now for the final time. After this wrist fusion surgery that you just described to us is completed, will Guillermo ever have normal range of motion in his right wrist? A: No, he won’t. Q: Can Guillermo expect at least 50 percent impairment in range of motion of that wrist? A: Yes, he can. Q: And just so the folks on the jury are clear, even if the surgery goes 100 percent perfectly well, Guillermo can still expect at least 50 percent impairment in his range of motion? A: That’s correct. I usually tell patients they’re going to have about half of the motion that they come in with. It’s usually not that – it can be better than that, but that’s what I tell people. Q: And could it be worse than that? A: It could be. --IV RR 82. Q: The surgery – the wrist fusion surgery, is that Guillermo’s best medical treatment option now? A: Yes. Q: And are there any guarantees for that surgery? A: No, there are not. Q: Even if the fusion surgery in his wrist goes 100 percent perfectly, is it possible that Guillermo may still experience pain? A: Yes. [54] Q: And even if the fusion surgery goes perfectly, we know with medical certainty he’s going to be impaired, right? A: That’s correct. --IV RR 84-85. As with future physical pain and mental anguish, Defendant offered no evidence, testimony or otherwise, to controvert Cronfel’s evidence as to his probable future physical impairment. Again, while the jury in the instant case did not award zero damages for Cronfel’s probable future physical impairment, given the testimony and medical record evidence presented in support thereof (demonstrating that after the wrist fusion surgery, Cronfel would be physically impaired to some degree for the rest of his life) and the lack of any controverting evidence, the jury’s award of $2,000.00 in answer to question 3(4) is supported by no evidence and/or insufficient evidence, is so against the great weight and preponderance of the evidence as to be manifestly unjust, and the court should reverse and remand for a new trial as a result. 7. The Jury’s Finding in Question 3(5), That the medical care expenses Guillermo Ochoa-Cronfel incurred in the past as a result of the injury was only $9,345.00, is Not Supported by Legally and/or Factually Sufficient Evidence. Past medical expenses are recoverable when a claimant demonstrates they were reasonable and necessary. Doctor, 186 S.W.3d, at 20, citing Nat’l Union Fire Ins. Co. v. Wyar, 821 S.W.2d 291, 297 (Tex.App.-Houston [1st Dist.] 1991, no writ.) [55] This can be demonstrated via medical records supported by affidavits pursuant to Tex. Civ. Prac. & Rem. Code §18.001. In the instant case, Cronfel presented medical billing records supported by affidavit, as well as a breakdown of the expenses by provider that in total demonstrated past medical expenses of $11,067.59.18 Defendant offered no evidence, testimony or otherwise, to controvert Cronfel’s evidence as to his past medical expenses. While the amount of damages to be awarded is generally left to the sound discretion of the jury, when a claimant shows, without contradiction, reasonable and necessary medical expenses arising from the incident that is the subject of the claim, a jury cannot arbitrarily assess an amount that is not authorized or supported by the evidence. See Hill v. Clayton, 827 S.W.2d 570, 574 (Tex.App.-Corpus Christi 1992, no writ.) Again, while the jury in the instant case did not award zero damages for Cronfel’s past medical expenses, given the testimony and medical record evidence presented in support thereof, and the lack of any controverting evidence, the jury’s award of $9,345.00 in answer to question 3(5) is supported by no evidence and/or insufficient evidence, is so against the great weight and preponderance of the evidence as to be manifestly unjust, and the court should reverse and remand for a new trial as a result. 8. The Jury’s Finding in Question 3(6), That the medical care expenses that, in reasonable probability, Guillermo Ochoa-Cronfel will incur in the future as a result of the injury was only $3,000.00, is Not Supported by Legally and/or Factually Sufficient Evidence. 18 See VII RR 17-265, Plaintiff’s Exhs. 2-7; and, VII RR 380, Plaintiff’s Exh. 11. [56] As with future pain and mental anguish, and future physical impairment, the standard for future medical expenses is that of “reasonable probability”. Doctor, 186 S.W.3d, at 20. And once again, here the evidence presented was in the form of the testimony of Cronfel’s treating physician, Dr. Lown that Cronfel would still have to undergo a wrist fusion surgery. IV RR 80-86. In describing the sort of medical expenses that Cronfel could expect in the future for the wrist fusion surgery that would be necessary, Dr. Lown testified to four, separate line items of expected expenses, including his services, the surgery center’s services, anesthesiology, and medical implants, that would total approximately $14,690.00. IV RR 82-84. Defendant offered no evidence, testimony or otherwise, to controvert Cronfel’s evidence as to his future medical expenses, yet the jury awarded only $3,000.00 for future medical expenses…less than one-fourth of that suggested by the only evidence it heard. Again, while the jury in the instant case did not award zero damages for Cronfel’s future medical expenses, given the expert testimony presented in support thereof, and the lack of any controverting evidence, the jury’s award of $3,000.00 in answer to question 3(6) is supported by no evidence and/or insufficient evidence, is so against the great weight and preponderance of the evidence as to be manifestly unjust, and the court should reverse and remand for a new trial as a result. 9. The Jury’s Finding in Question 3(7), That the disfigurement sustained in the [57] past by Guillermo Ochoa-Cronfel as a result of the injury was subject to a ZERO damage award, is Not Supported by Legally and/or Factually Sufficient Evidence. “Disfigurement has been defined as ‘that which impairs or injures the beauty, symmetry, or appearance of a person or thing; that which renders unsightly, misshapen or imperfect, or deforms in some manner.’” Sunbridge Healthcare Corp. v. Penny, 160 S.W.3d 230, 252 (Tex.App.-Texarkana 2005, no pet.), citing Goldman v. Torres, 341 S.W.2d 154, 160 (Tex. 1960); see also, Doctor, 186 S.W.3d, at 18. Moreover, “Expert testimony is not a prerequisite to the award of damages for disfigurement.” Sunbridge Healthcare, 160 S.W.3d, at 252, citing Transit Mgmt. Co. of Laredo v. Sanchez, 886 S.W.2d 823, 826 (Tex.App.-San Antonio 1994, no writ). In the instant case there was no evidence other than that introduced by Plaintiff demonstrating the disfigurement caused by the incident and his subsequent ulnar impact surgery. Dr. Lown testified that his review of Cronfel’s diagnostic films from the July, 2009 incident, along with his examination of Cronfel, led to his determination that the incident had caused a shortening of Cronfel’s ulna relative to his radius in his right arm. IV RR 65-67. That is, the symmetry of Cronfel’s ulna was affected by the incident, rendering it misshapen, imperfect, or deformed in some manner. Dr. Lown further testified that this disfigurement of Cronfel’s ulna led to the necessity of the ulnar impact surgery he ultimately performed on Cronfel. IV [58] RR 67. Dr. Lown then went on to describe the ulnar impact surgery itself, detailing the 8-10 cm (approx. 3-4 in.) incision required, the sawing of bone required, and the insertion of plates and screws required. IV RR 75-78. 19 Once again, Defendant offered no evidence, testimony or otherwise, to controvert Cronfel’s evidence as to his past disfigurement (as there was none to offer), yet the jury awarded zero damages for past disfigurement. Given the expert medical testimony presented in support of past disfigurement, the photographic evidence presented, and the lack of any controverting evidence, the jury’s award of zero damages in answer to question 3(7) is supported by no evidence and/or insufficient evidence, is so against the great weight and preponderance of the evidence as to be manifestly unjust, and the court should reverse and remand for a new trial as a result. 10.The Jury’s Finding in Question 3(8), That the disfigurement that, in reasonable probability, Guillermo Ochoa-Cronfel will sustain in the future as a result of the injury was subject to a ZERO damage award, is Not Supported by Legally and/or Factually Sufficient Evidence. As with future pain and mental anguish, future physical impairment, and future medical expenses, the standard for future disfigurement is that of “reasonable probability”. Doctor, 186 S.W.3d, at 20. Once again, the only evidence presented on this point was the expert medical testimony of Dr. Lown. As noted above, Dr. 19 See also FN 9, supra, and the accompanying post-surgical picture. [59] Lown testified that while there were no guarantees that the wrist fusion surgery he proposed for Cronfel’s future would alleviate all the pain he felt in his wrist, and that it would certainly leave him with some level of impairment, it would be his best medical treatment option. IV RR 84-85. Dr. Lown testified as to the nature of the wrist fusion surgery as follows: Q: Thank you. If you could, Doctor, please just show us what that wrist fusion procedure entails. A: Sure. So this is the disruption between like the scaphoid and lunate. So the procedure is to take out the scaphoid. Then we fuse the lunate to the capitate, to these other – these other bones, so that the wrist moves as one unit from here without this. Q: Okay. And then how – how are those bones fused? Can you explain that to us? A: I use – there’s several different ways to do it, but you take off the cartilage. There’s cartilage between these bones. Take all of that out and you get the bones so you get down to – down to good bone and then I usually put pins or stainless steel wires to hold the bones together to pin them in the position I want them in. And then the pins or wires come out after the bones heal in about four to six weeks. Q: So even after the surgery is performed, four to six weeks later the patient has to come in and have the pins removed? A: That’s correct. Q: How long are the wrist bones fused to the forearm bones? Is that – A: They’re not. Q: Okay. So that’s not the four corner – A: Four corners, one, two, three, four. That’s what’s fused. [60] Q: And how is that supposed to help with the pain? A: Because this bone is removed, and this is what’s kind of rubbing up on the radius and moving and not moving in line with the lunate. The lunate – just the way we’re built, it’s a deeper – this is the radius. It’s a deeper – deeper cup on the radius, so there’s a very predictable pattern of – of arthritis that develops. It usually starts here at the radial styloid, and it works its way around and can work its way between the capitate and the lunate. But what’s always preserved or usually preserved is the space between the – the lunate and the radius, so that’s a good area to run the wrist off of. Q: And that’s what you plan on doing for Guillermo? A: Yes. --IV RR 80-81. That is, Cronfel’s wrist was affected by the incident, rendering his best future option for medical treatment another surgery that would entail removal of a bone, removal of cartilage, and essentially tying the remaining bones together with pins and wires in order to fuse them over time. Clearly, this would affect the symmetry of Cronfel’s right wrist causing him further imperfection or deformity. Once again, Defendant offered no evidence, testimony or otherwise, to controvert Cronfel’s evidence as to his reasonably probable future disfigurement (as there was none to offer), yet the jury awarded zero damages for reasonably probable future disfigurement. Given the expert medical testimony presented in support of past disfigurement, and the lack of any controverting evidence, the jury’s award of zero damages in answer to question 3(8) is supported by no evidence and/or [61] insufficient evidence, is so against the great weight and preponderance of the evidence as to be manifestly unjust, and the court should reverse and remand for a new trial as a result. 11.The trial court’s monetary sanctions order against Cronfel was an abuse of discretion and should be vacated, or in the alternative, reduced. A trial court’s order of sanctions is reviewed for an abuse of discretion. Blake v. Dorado, 211 S.W.3d 429, 434 (Tex.App.-El Paso 2006, no pet.), citing Koslow’s v. Mackie, 796 S.W.2d 700, 704 (Tex. 1990); Aguilar v. Morales, 162 S.W.3d 825, 834 (Tex.App.-El Paso 2005, pet. denied). A trial court abuses its discretion when it acts without reference to any guiding rules and principles, and a trial court’s ruling should be reversed only if its action is arbitrary or unreasonable. Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004), citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Here the trial court was asked to sanction Cronfel, pursuant to Tex. R. Civ. Proc. 215.2(b)(5) & (8), for his alleged violation of a prior order requiring him to execute a medical authorization on behalf of Defendant for the production of his medical file from Dr. Lown’s office. CR 176-354 & 355-364, Defendant’s Motion and Supplement thereto. The prior order required Cronfel to provide the referenced medical authorization on or before September 19, 2014. CR 187-88. On September 19, 2014, Cronfel provided a medical authorization that restricted the release only of medical records from Dr. Lown’s office that related to his mental health [62] prescriptions, behavioral or mental health services, sexually transmitted diseases, and/or AIDS or HIV. CR 190. Prior to the hearing on Defendant’s Motion for Sanctions, Cronfel also provided a medical authorization without the above- referenced restrictions. CR 364. After a hearing on Defendant’s Motion for Sanctions the Honorable District Judge Gus Strauss entered the Order complained of herein, sanctioning Cronfel monetary sanctions in the amount of $5,000.00, “…in part to cover the attorney’s fees that Defendant incurred in response to this motion and all prior underlying hearings on prior motions to compel, and in part as sanctions for objectionable conduct…” CR 413. In his Brief in Support of his Argument Against Defendant’s Motion for Sanctions, and attendant Affidavit of Guillermo Ochoa-Cronfel, Cronfel explained that his understanding of the hearing and Order on which the Motion for Sanctions was based, was that the court had ordered a medical authorization for his complete medical file from Dr. Lown, excepting mental health records. CR 394-408. At the hearing on Defendant’s Motion for Sanctions Defendant’s counsel even stated that Defendant was not even seeking medical records related to Cronfel’s mental health. II CR 19-20. This makes sense as mental health records are privileged from discovery when they are not part of a party’s claims or defenses, as here, even if they may be relevant, because they are not at issue. See R.K., 887 S.W.2d, at 843. Defendant was asking the court to sanction Cronfel for seeking to protect records he [63] believed the court had expressed were protected, that both parties believed were protected, and that relevant case law expressly describes as protected. And, at the end of the day, not only was Cronfel sanctioned, but his mental health records were not protected from disclosure to Defendant. Additionally, and/or alternatively, the monetary sanctions ordered were improper under Tex. R. Civ. P. 215. “Any monetary sanctions available for abuse of discovery are limited to reasonable expenses, including attorney’s fees, caused by the abuse.” Lopez v. La Madeleine of Texas, Inc., 200 S.W.3d 854, 865 (Tex.App.- Dallas 2006, no pet.), citing Clone Component Distribs. Of Am., Inc. v. State, 819 S.W.2d 593, 597 (Tex.App.-Dallas 1991, no writ)(applying former Rule 215(2)(b)(2) and (8)). Here, Defendant did not offer any evidence as to his reasonable expenses and/or fees. While Defendant did attach the conclusory affidavit of his counsel, to the original motion for sanctions, claiming at least $3,500.00 in attorney’s fees (CR 197-98), such is not an offer of evidence as is required to support an award of sanctions under Rule 215: “With regard to rule 215.6, appellants liken a sanctions hearing to a summary judgment hearing and argue that since the sanctions rule contemplates the use of affidavits as exhibits to a response to a sanctions motion, the affidavits are admissible at the sanctions hearing in the same manner as such exhibits are admissible at a summary judgment hearing. However, unlike a sanctions hearing, a summary judgment hearing is ‘an exception to the usual and traditional form of procedure wherein witnesses are heard in open court and documentary evidence is offered and received in evidence.’ IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 441 (Tex. 1997) (quoting [64] Richards v. Allen, 402 S.W.2d 158, 160 (Tex. 1966)); see also Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 269 (Tex. 1992) (noting summary judgment exception to requirement of hearing at which witnesses present sworn testimony in person or by deposition rather than by affidavit). In order to assess sanctions in this case, the trial court was required to conduct an evidentiary hearing to which the rules of evidence necessarily apply. See Randolph v. Walker, 29 S.W.3d 271, 277 (Tex.App.-Houston [14th Dist.] 2000, pet. denied); Karagounis v. Property of Co. of America, 970 S.W.2d 761, 765 (Tex.App.-Amarillo 1998, pet. denied); Electronic Data Sys. Corp. v. Tyson, 862 S.W.2d 728, 739 (Tex.App.-Dallas 1993, no writ). Therefore, although rule 215.6 allows affidavits to be attached to a response to a sanctions motion, in order for the trial court to consider such affidavits, they must be admitted in compliance with the rules of evidence at the evidentiary hearing.” --Kugle v. DaimlerChrysler Corp., 88 S.W.3d 355, 363-64 (Tex.App.- San Antonio 2002, pet. denied). Nevertheless, assuming arguendo that the above-referenced attorney’s fees affidavit attached to Defendant’s Motion for Sanctions did constitute evidence in support of a sanctions award, the Court’s order explicitly stated that the $5,000.00 in attorney’s fees it was awarding as sanctions was partly for fees incurred and partly for objectionable conduct, but it gave no insight into how it arrived at the number it arrived at, or what portion(s) of the sanction related to fees and what portion did not. CR 413. To the extent the court’s monetary sanctions order sought to punish “objectionable conduct”, such is not authorized by Tex. R. Civ. P. 215.2(b)(8), as described above. Further, the court failed to explain the basis for its calculating the amount of the monetary sanction. As such, the monetary sanction constitutes an impermissible, arbitrary fine that is not susceptible to meaningful review. See [65] Stromburger v. Turley Law Firm, 251 S.W.3d 225, 226-27 (Tex.App.-Dallas 2008, no pet.). As a result, this court cannot properly determine whether the sanction is “just”, as is required in order to uphold same. Ford Motor Company v. Tyson, 943 S.W.2d 527, 535 (Tex.App.-Dallas 1997, orig. proceeding); See also, TransAmerican Natural Gas v. Powell, 811 S.W. 2d 913, 917 (Tex. 1991). For all of the foregoing reasons, this court should vacate the trial court’s order of monetary sanctions against Cronfel. PRAYER Appellant requests that the Court of Appeals reverse the judgment below, and remand the case for a new trial because of the lack of legally and/or factually sufficient evidence to support the jury’s findings on; (i) Plaintiff’s negligence/contributory negligence; (ii) $2,500.00 in damages awarded to Cronfel for physical pain and mental anguish sustained in the past; (ii) $1,000.00 in damages awarded to Cronfel for physical pain and mental anguish that, in reasonable probability, he would sustain in the future; (iii) $500.00 in damages awarded to Cronfel for physical impairment sustained in the past; (iv) $2,000.00 in damages awarded to Cronfel for physical impairment that, in reasonable probability, he will sustain in the future; (v) $9,345.00 in damages awarded to Cronfel for medical care expenses incurred in the past; (vi) $3,000.00 in damages awarded to Cronfel for medical care expenses that, in reasonable probability, he would incur in the future; [66] (vii) $0.00 in damages awarded to Cronfel for disfigurement sustained in the past; and/or, (viii) $0.00 in damages awarded to Cronfel for disfigurement that, in reasonable probability, he will sustain in the future. Further, Appellant requests that the Court of Appeals vacate the trial court’s order assessing monetary sanctions in the amount of $5,000.00 against Cronfel as an abuse of discretion. Respectfully submitted, /s/ Paul T. Morin Mr. Paul T. Morin Texas Bar No. 14460550 Paul T. Morin, P.C. 503 West 14th Street Austin, Texas 78701 Telephone: (512) 499-8200 Facsimile: (512) 499-8203 pmorin@austin.rr.com Guillermo Ochoa-Cronfel Texas Bar No. 15175600 The Cronfel Firm 2700 Bee Caves Road, Suite 103 Austin, Texas 78746 Telephone: (512) 347-9600 Facsimile: (512) 347-9911 Guillermo@thecronfelfirm.com Counsel for Appellant, Guillermo Ochoa-Cronfel [67] Certificate of Compliance I certify that on September 14, 2015, this Appellant’s Brief was produced on a computer and contains 13,120 words, excluding the caption, identity of parties and counsel, statement regarding oral argument, table of contents, index of authorities, statement of the case, and statement of the issues presented, and thus does not exceed the 15,000 word limit provided for by Tex. R. App. P. 9.4(i). /s/ Paul T. Morin Paul T. Morin Certificate of Filing and Service I certify that on September 14, 2015, I used the Court’s electronic case filing system to file this Appellant’s Brief and to serve this document on the counsel for Appellee: Mr. Gregory R. Ave Texas Bar No. 01448900 Walters, Balido & Crain, L.L.P. 10440 North Central Expressway Meadow Park Tower, Suite 1500 Dallas, Texas 75231 Telephone: (214) 347-8310 Facsimile: (214) 347-8311 Greg.Ave@wbclawfirm.com /s/ Paul T. Morin Paul T. Morin [68] APPENDIX Tab 1) Final Judgment dated January 28, 2015 (Supp. CR 3-6). 2) Order on Defendant’s Motion for Sanctions dated October 31, 2015 (CR 413). 3) Jury Charge dated November 19, 2014 (CR 495-503). 4) Tex. Civ. Prac. & Rem. Code §18.001. 5) Tex. R. Civ. P. 215.2. 6) Trial Testimony of Guillermo Ochoa-Cronfel (IV RR 119-193). 7) Trial Testimony of Dr. Ira Lown (IV RR 31-119). 8) Trial Testimony of Patrick C. Murray (IV RR 199-224). 9) Plaintiff’s Brief in Support of his Argument Against Defendant’s Motion for Sanctions (CR 384-408). [69] 496 497 499 § 18.001. Affidavit Concerning Cost and Necessity of Services, TX CIV PRAC & REM... Vernon's Texas Statutes and Codes Annotated Civil Practice and Remedies Code (Refs & Annos) Title 2. Trial, Judgment, and Appeal Subtitle B. Trial Matters Chapter 18. Evidence Subchapter A. Documentary Evidence V.T.C.A., Civil Practice & Remedies Code § 18.001 § 18.001. Affidavit Concerning Cost and Necessity of Services Effective: September 1, 2013 Currentness (a) This section applies to civil actions only, but not to an action on a sworn account. (b) Unless a controverting affidavit is served 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. (c) The affidavit must: (1) be taken before an officer with authority to administer oaths; (2) be made by: (A) the person who provided the service; or (B) the person in charge of records showing the service provided and charge made; and (3) include an itemized statement of the service and charge. (d) The party offering the affidavit in evidence or the party's attorney must serve a copy of the affidavit on each other party to the case at least 30 days before the day on which evidence is first presented at the trial of the case. Except as provided by the Texas Rules of Evidence, the records attached to the affidavit are not required to be filed with the clerk of the court before the trial commences. (e) A party intending to controvert a claim reflected by the affidavit must serve a copy of the counteraffidavit on each other party or the party's attorney of record: (1) not later than: © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 § 18.001. Affidavit Concerning Cost and Necessity of Services, TX CIV PRAC & REM... (A) 30 days after the day the party receives a copy of the affidavit; and (B) at least 14 days before the day on which evidence is first presented at the trial of the case; or (2) with leave of the court, at any time before the commencement of evidence at trial. (f) The counteraffidavit must give reasonable notice of the basis on which the party serving it intends at trial to controvert the claim reflected by the initial affidavit and must be taken before a person authorized to administer oaths. The counteraffidavit must be made by a person who is qualified, by knowledge, skill, experience, training, education, or other expertise, to testify in contravention of all or part of any of the matters contained in the initial affidavit. Credits Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., ch. 167, § 3.04(a), eff. Sept. 1, 1987; Acts 2007, 80th Leg., ch. 978, § 1, eff. Sept. 1, 2007; Acts 2013, 83rd Leg., ch. 560 (S.B. 679), § 1, eff. Sept. 1, 2013. Notes of Decisions (61) V. T. C. A., Civil Practice & Remedies Code § 18.001, TX CIV PRAC & REM § 18.001 Current through the end of the 2015 Regular Session of the 84th Legislature End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 215.2. Failure to Comply with Order or with Discovery Request, TX R RCP Rule 215.2 Vernon's Texas Rules Annotated Texas Rules of Civil Procedure Part II. Rules of Practice in District and County Courts Section 9. Evidence and Discovery (Refs & Annos) B. Discovery Rule 215. Abuse of Discovery; Sanctions (Refs & Annos) TX Rules of Civil Procedure, Rule 215.2 215.2. Failure to Comply with Order or with Discovery Request Currentness (a) Sanctions by Court in District Where Deposition is Taken. If a deponent fails to appear or to be sworn or to answer a question after being directed to do so by a district court in the district in which the deposition is being taken, the failure may be considered a contempt of that court. (b) Sanctions by Court in Which Action is Pending. If a party or an officer, director, or managing agent of a party or a person designated under Rules 199.2(b)(1) or 200.1(b) to testify on behalf of a party fails to comply with proper discovery requests or to obey an order to provide or permit discovery, including an order made under Rules 204 1 or 215.1, the court in which the action is pending may, after notice and hearing, make such orders in regard to the failure as are just, and among others the following: (1) an order disallowing any further discovery of any kind or of a particular kind by the disobedient party; (2) an order charging all or any portion of the expenses of discovery or taxable court costs or both against the disobedient party or the attorney advising him; (3) an order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (4) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence; (5) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing with or without prejudice the action or proceedings or any part thereof, or rendering a judgment by default against the disobedient party; (6) in lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination; (7) when a party has failed to comply with an order under Rule 204 requiring him to appear or produce another for examination, such orders as are listed in paragraphs (1), (2), (3), (4) or (5) of this subdivision, unless the person failing to comply shows that he is unable to appear or to produce such person for examination. (8) In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him, or both, to pay, at such time as ordered by the court, the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. Such an order shall be subject to review on appeal from the final judgment. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 215.2. Failure to Comply with Order or with Discovery Request, TX R RCP Rule 215.2 (c) Sanction Against Nonparty For Violation of Rules 196.7 or 205.3. If a nonparty fails to comply with an order under Rules 196.7 or 205.3, the court which made the order may treat the failure to obey as contempt of court. Credits Oct. 29, 1940, eff. Sept. 1, 1941. Amended by orders of Aug. 5, 1998, and Nov. 9, 1998, eff. Jan. 1, 1999. Notes of Decisions (175) Footnotes 1 Vernon's Ann.Rules Civ.Proc., rule 204.1 et seq. Vernon's Ann. Texas Rules Civ. Proc., Rule 215.2, TX R RCP Rule 215.2 Current with amendments received through 6/1/2015 End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 119 1 what your office staff tells you to some degree about 2 these estimates? 3 A. That's correct. 4 Q. And not your personal expertise? 5 A. True. 6 MR. PAYNE: Nothing further. Thank you, 7 Dr. Lown. 8 THE COURT: Anything? 9 MR. CAGLE: Nothing further. 10 THE COURT: Okay. Thank you, Dr. Lown. 11 You may step down, and you're excused as a witness. 12 It's a natural breaking point. Even though we're a 13 little earlier than noon, I'm going to go ahead and 14 we'll take our lunch break. 15 What that means is, when we come back at 16 1:15, we'll have a little bit longer of an afternoon, 17 so just make sure you come back well fed and ready to 18 go until five o'clock. But at this time, it's 11:45. 19 I'll see you all at 1:15. 20 (Lunch recess was taken.) 21 THE COURT: Plaintiff, you may call your 22 next witness. 23 MR. CAGLE: Thank you, Your Honor. We 24 call the plaintiff, Guillermo Ochoa-Cronfel. 25 THE COURT: Mr. Ochoa-Cronfel, please 120 1 raise your right hand. 2 (Witness was sworn in.) 3 THE COURT: Thank you. Please have a 4 seat. 5 GUILLERMO OCHOA-CRONFEL, 6 having been first duly sworn, testified as follows: 7 DIRECT EXAMINATION 8 BY MR. CAGLE: 9 Q. Mr. Cronfel, will you introduce yourself to 10 the folks of the jury? 11 A. My name is Guillermo Ochoa-Cronfel. My 12 friends call me Memo. 13 Q. Tell us a little bit about yourself, 14 Mr. Cronfel. Where are you from? 15 A. I was born in Houston, was raised down on the 16 border in Laredo. Then left there and went to college, 17 put myself through college, and then came here to 18 Austin and put myself through graduate school here in 19 Austin, and I've been living here since then. 20 Q. Did you graduate from graduate school in 1988? 21 A. Yes, I did. 22 Q. You've lived in Austin since that time, you 23 said? 24 A. Yes, I do. 25 Q. Have you practiced law in Austin since 1988? 121 1 A. Yes, I have. 2 Q. And what area of law do you focus on? 3 A. I'm a business lawyer. 4 Q. And before this case, have you and I ever met? 5 A. No. 6 Q. When you're not practicing business law, 7 Mr. Cronfel, what do you like to do in your spare time? 8 A. I love the outdoors. I love to exercise. I 9 like to ride bikes, and I like to go to the gym. 10 Q. Where do you normally bike? 11 A. In my neighborhood. I live in a neighborhood 12 off Southwest Parkway. It's called Travis Country. 13 I've lived there since 1995, and so I bike a lot in my 14 neighborhood. It's safe, or at least I thought it was, 15 but -- and I also bike in the greenbelt area right next 16 to there. I can drop down in there and do that. 17 Q. And how often would you bike in your 18 neighborhood, Mr. Cronfel, would you say on a weekly 19 basis? 20 A. If it's nice weather, like we have most of the 21 time here in Austin, I'll bike four to six times a 22 week, you know. During the rainy, cold times of the 23 month -- of the year, I don't bike as much, but I try 24 to get out as much as I can. I enjoy biking. 25 Q. In addition to biking, do you try to exercise 122 1 regularly? 2 A. Yes. I -- I go to the gym three to five times 3 a week. I really enjoy exercising. 4 Q. Do you exercise by yourself, or do you have a 5 personal trainer? 6 A. No. I have a trainer. I've had a trainer 7 since -- for about 12 years now, who oversees what I do 8 and makes up plans for me. 9 Q. Have you had the same personal trainer since 10 2004? 11 A. Yes, I have. His name is Shane Selberg, and 12 he's trained me for that long. 13 Q. When you exercise at the gym, do you do it 14 under the supervision of Mr. Selberg? 15 A. Yes, I do it under the supervision of the 16 trainer. He makes up plans for me. He watches how I'm 17 doing and tries to make plans that relate to what my 18 physical condition is at the time. 19 Q. I want to ask you about July 23rd, 2009, the 20 day of the incident that we're all here to talk about. 21 Okay? 22 A. Yes, sir. 23 Q. What -- excuse me. What were you doing that 24 day? 25 A. I had just gotten home from work. It was 123 1 about 6:00, 6:30 in the evening. It was a hot day, as 2 it usually is in July, and I wanted to go for a bike 3 ride. So I got on my bike and left my house and went 4 riding on my road bike. 5 Q. Was it still light out when you left your 6 house? 7 A. It was very -- very much so, yes. 8 Q. And where were you going? 9 A. I was going on one of my usual routes. I have 10 two or three routes that I take in the neighborhood 11 that I'm very familiar with, and I picked one of those. 12 So I was just headed down one of those familiar routes. 13 Q. On this particular route you were taking, how 14 many times do you think you've ever ridden that route? 15 A. Hundreds of times. I've been living in that 16 neighborhood since 1995. 17 Q. And since 1995, you've ridden your bike 18 through the neighborhood? 19 A. Many, many, many times. 20 Q. When you're riding your bicycle through the 21 neighborhood at Travis Country, you see folks out there 22 walking their dogs? 23 A. Yes, I do. It's almost invariably I see folks 24 walking their dogs when I'm coming home from work in my 25 car or leaving. 124 1 Q. Is it a neighborhood that, in your experience, 2 is fairly active with bike riders and dog walkers and 3 the like? 4 A. Yes. There's a lot of people walking their 5 dogs. There's a lot of bike riders. Since the 6 greenbelt is there, people are always coming in and out 7 of it, and it's very active. 8 Q. When you see folks out walking their dogs in 9 the Travis Country neighborhood, are they normally 10 holding onto a leash? 11 A. Invariably, yes. They're normally doing that, 12 yes. 13 Q. I'm going to show you a photograph that has 14 been admitted as Exhibit 1 in this case. And do you 15 recognize that photograph? 16 A. Yes, I do. 17 Q. Can you tell us what it is, please? 18 A. That's a street I was going down when the dog 19 attacked me. 20 Q. And were you riding your bicycle down this 21 street just before the incident? 22 A. Yes, I was. 23 Q. And when you were riding down the street, were 24 you riding in the same direction as that car that is 25 facing in that photograph? 125 1 A. Yes, I was. 2 Q. Were you riding a road bike? 3 A. Yes, I was. 4 Q. Were your feet clipped into the pedals? 5 A. Yes, they were. 6 Q. I want to ask you about the car that you see 7 in this photograph, Mr. Cronfel. Was that car there on 8 the day of the incident or were there more cars there? 9 A. I can't say that that car was there. There 10 was two or more cars that were there. 11 Q. In the same position as where that car is? 12 A. That's correct. 13 Q. As you approached these cars over by the curb, 14 did you see the defendant or his dog at all? 15 A. No, I didn't see either of them. 16 Q. And as you began approaching the cars, 17 Mr. Cronfel, how close were you to them? 18 A. Well, I wasn't close enough whereby I'd be 19 worried about a door opening or anything like that. 20 But I was far enough where I knew that I wasn't going 21 to have that problem. 22 Q. And you didn't see the defendant or his dog on 23 the sidewalk or anything like that? 24 A. No, I -- I never saw them. 25 Q. Did you later learn where the defendant and 126 1 his dog were just before this attack? 2 A. My understanding is that they were in a front 3 yard to the right of that vehicle. 4 Q. As you began passing the cars on the right, 5 tell us what happened next. 6 A. Well, I was clipped in my bike. I was focused 7 on what I was doing. I was ramping up, trying to get a 8 good workout. And as I was passing the edge of a car, 9 all of a sudden, this dog is coming at me like a 10 rocket. And it -- it smashed into my front end of the 11 wheel and knocked it up, and all the force that I had 12 going forward, pushed me down toward the ground, and I 13 was heading toward the ground. My head was headed 14 toward the ground. And I put my -- my -- luckily, I 15 was able to put my arm up, but all of that force went 16 into my arm and my wrist and my elbow, and I smashed 17 into the ground. 18 Q. When the dog impacted your wheel, would you 19 say that the wheel got knocked out from under you? 20 A. It hit the wheel and the wheel went up, and it 21 forced me down into the ground. 22 Q. Looking back at -- at the scene of -- of this 23 incident, were the cars obscuring your view of the 24 defendant and his dog, do you think? 25 A. I did not see them. I think that that would 127 1 be the case. 2 Q. Did you have any time to react or avoid the 3 dog? 4 A. I was -- the dog was on top of me. I had no 5 time to react, no. 6 Q. How fast do you think you were going at the 7 time of the impact with the dog? 8 A. I was picking up speed. I was going at a good 9 clip, trying to get a good workout in. 10 Q. Were you wearing a helmet? 11 A. Yes, I was. 12 Q. And what part of your body hit the pavement 13 first? 14 A. The first thing that hit the pavement was my 15 wrist, my forearm, elbow, and then my shoulder. 16 Q. Mr. Cronfel, can you describe for us the force 17 of the impact that you had with the pavement? 18 A. The force was violent. It was -- it was 19 terrible. It was -- it was scary, but it was very, 20 very violent. 21 Q. Describe how you felt as soon as you hit the 22 pavement. 23 A. I felt great pain. I -- I hit the pavement 24 and then I slid, and I felt the pain from the initial 25 impact and that violent impact. And then I slid on 128 1 that granular surface. Then it was 6:30 in the 2 evening, so it was burning hot, on top of that. 3 Q. You said you slid on the pavement. Do you 4 know how far you slid? 5 A. No, I don't know. 6 Q. Did you get any of that -- what do you call 7 that, road rash? 8 A. I got scrapes on my face. I got scrapes on my 9 arm and my elbow and on my leg. 10 Q. Mr. Cronfel, did you get up immediately after 11 you hit the pavement? 12 A. I couldn't get up. I was dazed. I was in 13 great pain. I was scared. I -- things were swirling 14 around. 15 Q. And tell us, just so we're clear, where you 16 were feeling th [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4073274. Public record. Not legal advice.