Opinion issued=20
December 20, 2007
In=20
The
Court of =
Appeals
For=20
The
First District of=20
Texas
NO. =
01-06-00727-CV
KASEY SCHOTT,=20
Appellant
v.
HUBERT KNIGHT, G-P DEVELOPMENT LTD., =
D/B/A=20
SERVICE PARK, CENTRAL PARKING CORPORATION AND ALLRIGHT PARKING =
SYSTEM=20
A/K/A CENTRAL PARKING SYSTEM OF TEXAS, INC., =
Appellees
On Appeal from the 270th District =
Court=20
Harris County, =
Texas
Trial Court Cause No. =
2004=E2=80=9301887
MEMORANDUM =
OPINION
<=
/SPAN>In=20
this automobile accident case, appellant, Kasey Schott =
(=E2=80=9CSchott=E2=80=9D) presents=20
two issues contending that the jury=E2=80=99s verdict of =
=E2=80=9Czero damages=E2=80=9D for her=20
claims of past and future mental anguish is so against the great =
weight=20
and preponderance of the evidence as to be manifestly wrong and =
unjust.=20
<=
/SPAN>We=20
affirm.
Background
<=
/SPAN>Schott=20
sued appellees, Hubert Knight (=E2=80=9CKnight=E2=80=9D), G-P =
Development Ltd., d/b/a=20
Service Park, Central Parking Corporation and Allright Parking =
System=20
a/k/a Central Parking System of Texas, Inc. (collectively =
=E2=80=9CCentral=20
Parking=E2=80=9D), to recover damages for personal injuries she =
sustained when the=20
truck in which Schott and her family were riding was struck by a =
shuttle=20
bus driven by Knight while he was in the employment of Central =
Parking.=20
Liability was uncontested; the case proceeded to trial on the =
issue of=20
damages only.
<=
/SPAN>At=20
trial, Dr. Harvey Rosenstock, the psychiatrist retained by =
appellees to=20
evaluate Schott, testified that Schott suffered from =
=E2=80=9Cmild=E2=80=9D post-traumatic=20
stress disorder (=E2=80=9CPTSD=E2=80=9D). Dr. Rosenstock testified =
that the car accident=20
was =E2=80=9Ca precipitating factor=E2=80=9D for Schott=E2=80=99s =
PTSD. Dr. Rosenstock evaluated=20
Schott almost three years after the accident. Dr. Rosenstock =
testified=20
that Schott reported to him that she still suffered from panic =
attacks,=20
could not go out to socialize, experienced crying episodes, was =
terrified=20
of driving, and continued to have dreams that her daughter was =
killed in a=20
car accident. Dr. Rosenstock testified that his evaluation was =
based on=20
what Schott reported to him and that he did not do an independent=20
investigation to confirm what Schott told him.
<=
/SPAN>According=20
to Dr. Rosenstock, Schott=E2=80=99s PTSD could be resolved in six =
months to two=20
years with treatment. Dr. Rosenstock testified that such treatment =
would=20
cost $10,800.
<=
/SPAN>The=20
jury awarded Schott $30,000 for past medical expenses, $10,800 for =
future=20
medical expenses, and $10,000 for past physical pain. The jury =
awarded=20
=E2=80=9Czero damages=E2=80=9D to Schott for future physical pain, =
for past and future=20
physical impairment, and for past and future mental anguish. =
<=
/SPAN>In=20
two issues, Schott challenges the jury=E2=80=99s award of zero =
damages for past=20
and future mental anguish asserting that the award is against the =
great=20
weight and preponderance of the evidence as to be manifestly =
unjust.
Conflicting Jury=20
Answers
<=
/SPAN>In=20
support of her challenge to the jury=E2=80=99s zero damage award =
for past and=20
future mental anguish, Schott asserts, =E2=80=9CThe jury=E2=80=99s =
verdict awarding future=20
medical expenses for psychiatric treatment . . . but awarding =
nothing for=20
past and future mental anguish is by definition against the great =
weight=20
and preponderance of the evidence and is manifestly =
unjust.=E2=80=9D Schott points=20
out that Dr. Rosenstock testified that her treatment for PTSD =
would cost=20
$10,800, which is the same amount awarded by the jury for future =
medical=20
expenses. Schott contends that, if the jury believed that she =
required=20
psychiatric treatment for her PTSD, as indicated by the =
jury=E2=80=99s award of=20
$10,800 for future medical expenses, then she necessarily suffered =
compensable mental anguish damages.
<=
/SPAN>Though=20
phrased in terms of factual sufficiency challenges, =
Schott=E2=80=99s substantive=20
argument on this point is developed as a complaint that the =
jury=E2=80=99s verdict=20
contained conflicting answers. See Dori v. Bondex =
Int=E2=80=99l, Inc., No.=20
11=E2=80=9304=E2=80=9300179=E2=80=93CV, 2006 WL 1554614 at =
*4=E2=80=935 (Tex. App.=E2=80=94Eastland June 8, 2006,=20
no pet.) (mem. op.). Schott contends that the jury=E2=80=99s award =
of future=20
medical expenses cannot be reconciled with its award of zero =
damages for=20
past and future mental anguish damages. Such an argument is not =
based on=20
the record containing factually insufficient evidence to support =
the=20
challenged award, but instead on a claimed inconsistency in the =
jury=E2=80=99s=20
findings. See id.
<=
/SPAN>We=20
agree with appellees that Schott has waived this complaint. Schott =
did not=20
preserve error when she failed to object to the alleged conflict =
in the=20
verdict before the trial court discharged the jury. ![3DFootnote](3D"")
Oyster Creek Fin. Corp. v. =
Richwood Inv.=20
II, Inc., 176 S.W.3d 307, 324 (Tex. App.=E2=80=94Houston [1st =
Dist.] 2004,=20
pet. denied); see Tex. R.=20
Civ. P. 295. Because Schott did not timely raise her =
complaint, we=20
do not reconcile the purported inconsistencies in the =
jury=E2=80=99s verdict.=20
Springs Window Fashions Div., Inc. v. Blind Maker, Inc., =
184 S.W.3d=20
840, 867 (Tex. App.=E2=80=94Austin 2006, pet. granted, =
judgm=E2=80=99t vacated w.r.m.). As=20
a result, we give effect to each jury finding and conduct our =
sufficiency=20
review in the manner that we would had no conflict been raised. =
Id.;=20
see Dori, 2006 WL 1554614 at *5.
Factual=20
Sufficiency Challenge
<=
/SPAN>Schott=20
also contends that the zero damage award for past and future =
mental=20
anguish damages is =E2=80=9Cagainst the great weight and =
preponderance of the=20
evidence=E2=80=9D because the evidence supporting her mental =
anguish claims was=20
=E2=80=9Cclear and uncontroverted=E2=80=9D and =
=E2=80=9Cundisputed.=E2=80=9D Schott cites the testimony of=20
Dr. Rosenstock detailing, as discussed above, the claimed =
manifestations=20
and symptoms reported to him by Schott. She also cites her =
testimony=20
detailing the same symptoms reported by her to Dr. Rosenstock. In=20
addition, Schott relies on Dr. Rosenstock=E2=80=99s diagnosis that =
she suffers=20
from PTSD. Schott asserts, without authority, =E2=80=9CPTSD is =
mental anguish.=E2=80=9D=20
=
=
When=20
reviewing a challenge to the factual sufficiency of a =
jury=E2=80=99s refusal to=20
award damages, we consider and weigh all of the evidence, both in =
support=20
of and against the findings, to decide whether the verdict should =
be set=20
aside. Doctor v. Pardue, 186 S.W.3d 4, 17 (Tex. =
App.=E2=80=94Houston [1st=20
Dist.] 2006, pet. denied) (citing Pool v. Ford Motor Co., =
715=20
S.W.2d 629, 635 (Tex. 1986)). We uphold the jury=E2=80=99s verdict =
unless it is so=20
against the great weight and preponderance of the evidence as to =
be=20
manifestly unjust or shocking to the conscience. Id. We may =
not=20
substitute our judgment for that of the jury, even if the evidence =
would=20
clearly support a different result. Nip v. Checkpoint Sys., =
Inc.,=20
154 S.W.3d 767, 769 (Tex. App.=E2=80=94Houston [14th Dist.] 2004, =
no pet.).=20
<=
/SPAN>The=20
jury is the sole judge of the credibility of the witnesses and the =
weight=20
to be given to the witness=E2=80=99s testimony. Golden Eagle =
Archery, Inc. v.=20
Jackson, 116 S.W.3d 757, 761 (Tex. 2003). As factfinder, the =
jury is=20
free to disbelieve expert witnesses. See Walker v. Ricks, =
101=20
S.W.3d 740, 748 (Tex. App.=E2=80=94Corpus Christi, 2003, no pet.); =
Waltrip v.=20
Bilbon Corp., 38 S.W.3d 873, 882 (Tex. App.=E2=80=94Beaumont =
2001, pet.=20
denied). Although it may not disregard objective symptoms of an =
injury, a=20
jury may ignore a complaining party=E2=80=99s subjective evidence. =
Gonzalez v.=20
Wal-Mart Stores, Inc., 143 S.W.3d 118, 123 (Tex. =
App.=E2=80=94San Antonio=20
2004, no pet.).
<=
/SPAN>For=20
these reasons, the process of awarding damages for amorphous =
injuries such=20
as mental anguish is inherently difficult because the alleged =
injury is a=20
subjective, unliquidated, nonpecuniary loss. Brookshire Grocery =
Co. v.=20
Goss, 208 S.W.3d 706, 720 (Tex. App.=E2=80=94Texarkana =
2006, no pet.).=20
Because there are no objective guidelines to assess the monetary=20
equivalent to such injuries, the jury is given a great deal of =
discretion=20
in awarding an amount of damages it deems appropriate. See =
Texarkana=20
Mem=E2=80=99l Hosp., Inc. v. Murdock, 946 S.W.2d 836, 841 =
(Tex. 1997). In=20
short, when the fact of the injury and resulting damages chiefly =
depends=20
on subjective evidence, appellate courts are reluctant to hold the =
non-findings of damages as against the great weight and =
preponderance of=20
the evidence. Lara v. Weeks Marine, Inc., No. =
04-06-00237-CV, 2007=20
WL 1540269, *2 (Tex. App.=E2=80=94San Antonio May 30, 2007, no =
pet.) (mem.=20
op.).
<=
/SPAN>Here,=20
Schott=E2=80=99s challenge to the jury=E2=80=99s refusal to award =
damages for past and=20
future mental anguish is based on her subjective claims regarding =
how she=20
has been effected by the automobile accident, or the testimony of =
Dr.=20
Rosenstock, which, in turn, was based on Schott=E2=80=99s =
subjective reports to=20
him. Thus, Schott=E2=80=99s credibility was key in this case. We =
note that the=20
jury had before it evidence probative of Schott=E2=80=99s =
credibility.=20
Specifically, appellees introduced evidence that Schott had been =
convicted=20
of theft of property valued between $500 and $1500 following the =
accident.=20
Appellees also elicited testimony from Dr. Rosenstock that Schott =
had=20
misrepresented to him the value of the property that she had =
stolen. Thus,=20
given the subjective nature of the evidence underlying =
Schott=E2=80=99s claim for=20
mental anguish damages and the evidence casting some doubt on =
Schott=E2=80=99s=20
credibility, it was the jury=E2=80=99s prerogative to disbelieve =
Schott=E2=80=99s claims=20
regarding the continuing psychological effects of the accident. =
See Cox=20
v. Centerpoint Energy, Inc., No. 14-05-01130-CV, 2007 WL =
1437519, at=20
*6=E2=80=937 (Tex. App.=E2=80=94Houston [14th Dist.] May 17, 2007, =
no pet.) (mem. op.)=20
(affirming zero damage award for future pain and mental anguish =
because=20
jury was free to disbelieve plaintiff=E2=80=99s subjective claims =
and doctor=E2=80=99s=20
testimony based entirely on plaintiff=E2=80=99s reports); =
Gonzalez, 143=20
S.W.3d at 123 (recognizing that jury may ignore complaining =
party=E2=80=99s=20
subjective evidence); Waltrip v. Bilborn Corp., 38 S.W.3d =
873, 880=20
n.1 (Tex. App.=E2=80=94Beaumont 2001, pet. denied) (discussing =
that jury is free=20
to believe or disbelieve plaintiff=E2=80=99s subjective complaints =
of pain or=20
testimony of any other witness, including the plaintiff=E2=80=99s =
doctor, who=20
testified he was relying on plaintiff=E2=80=99s reports); Rivas =
v. Garibay,=20
974 S.W.2d 93, 96 (Tex. App.=E2=80=94San Antonio 1998, pet. =
denied) (holding jury=20
may disbelieve any witness, including a physician, even though =
that=20
witness=E2=80=99s testimony is not contradicted).
<=
/SPAN>In=20
addition, a jury may weigh testimony regarding previous or =
subsequent=20
injury and its effect on the complaining party. Gonzalez, =
143=20
S.W.3d at 123=E2=80=9324. Here, the jury heard that Schott had a =
troubling=20
childhood. Schott=E2=80=99s mother suffered from depression. =
Schott=E2=80=99s father =E2=80=9Chad=20
a serious drinking problem=E2=80=9D and abused Schott=E2=80=99s =
mother. When she was=20
three, Schott witnessed her father drag her mother across sharp =
shards of=20
oyster shells, leaving her mother mutilated. After her parents =
divorce,=20
Schott spent a number of years in foster homes. Schott=E2=80=99s =
brother committed=20
suicide by hanging himself. Evidence also was presented that, =
following=20
the automobile accident at issue, Schott=E2=80=99s grandmother =
died, Schott was=20
convicted of theft, and Schott broke her heel from falling from a =
shelf.=20
Given this evidence, the jury may have attributed any mental =
anguish=20
suffered by Schott to the other traumas she experienced rather =
than to the=20
automobile accident.
<=
/SPAN>We=20
conclude that the jury=E2=80=99s refusal to award damages for past =
and future=20
mental aguish was not so against the great weight and =
preponderance of the=20
evidence as to be manifestly unjust or shocking to the conscience. =
We hold=20
that the evidence was factually sufficient to support the =
jury=E2=80=99s zero=20
damage award for past and future mental anguish.
<=
/SPAN>We=20
overrule Schott=E2=80=99s first and second issues.
Conclusion
<=
/SPAN>We=20
affirm the judgment of the trial court.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Laura=20
Carter Higley
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Justice
Panel=20
consists of Justices Taft, Hanks, and=20
Higley. |