Opinion issued May 3,=20 2007
For=20 The
MICHAEL =
DAVID=20
BOWLER, Appellant METROPOLITAN TRANSIT=20
AUTHORITY OF =
HARRIS COUNTY,=20
TEXAS, Appellee
On =
Appeal from the=20
127th District Court Harris =
County,=20
Texas Trial =
Court Cause=20
No. 2005-45221
MEMORANDUM=20
OPINION In this no answer-default =
judgment case,=20
the trial court awarded appellee, Metropolitan Transit Authority =
Of Harris=20
County, Texas ("Metro"), $49,108.85 in damages, plus pre-judgment =
interest=20
and costs, against appellant, Michael David Bowler. On appeal, =
Bowler=20
contends that Metro presented legally insufficient evidence to =
support the=20
damages awarded. We affirm.
Metro filed =
suit against=20
Bowler. Metro alleged that, while he was driving, Bowler struck a =
bus=20
driven by Metro employee, Natalie Haughton. Metro claimed that, as =
a=20
result of Bowler's negligence, Haughton "suffered serious injuries =
and=20
suffered other damages, . . . including substantial medical =
expenses and=20
loss of income." Metro alleged that, as a result of the accident, =
it paid=20
workers' compensation benefits to Haughton. Metro asserted that, =
by=20
statute, it was subrogated to the rights of Haughton for any =
benefits it=20
had paid to her. On that basis, Metro claimed that Bowler was =
"responsible=20
for [Metro's] losses in the form of its payment of benefits for or =
to=20
[Haughton]." After Bowler did not answer the =
suit,=20
Metro filed a motion for default judgment. Metro attached two =
affidavits,=20
each signed by its custodian of records, E. Gail Mitchell, who =
stated in=20
each affidavit that she was "personally acquainted with the =
facts."=20
Mitchell testified that Metro had paid $15,813.24 in medical bills =
on=20
behalf of Haughton "resulting from the collision made the basis of =
this=20
lawsuit" and $34,922.74 in lost wages to Haughton "as a result of =
injuries=20
she sustained in the collision made the basis of this lawsuit." =
Metro also=20
offered its authenticated business records itemizing the medical =
expenses=20
and lost income benefits it had paid. The trial court granted the =
motion=20
and signed an interlocutory default judgment. The court later held =
a=20
damages hearing at which Metro submitted further evidence =
supporting the=20
damages it sought. Metro offered 16 affidavits from each of the =
medical=20
providers that had supplied services to Haughton. The affiant in =
each=20
affidavit testified that the medical services provided to Haughton =
were=20
reasonable and necessary. Each affidavit also reflected the sum =
charged by=20
that provider for the medical services it supplied to Haughton. =
Metro also=20
offered another authenticated Metro business record, a printout of =
a=20
computer screen, showing the sums that Metro had paid related to =
the=20
accident. At the end of the hearing, the =
trial=20
court signed a "Final Judgment" ordering that Metro recover =
$49,108.85 in=20
damages and $7,966.38 in pre-judgment interest from Bowler. =
On appeal, Bowler asserts that =
Metro's=20
evidence was legally insufficient to support the trial court's =
award of=20
damages. A. Standard of Review =
and General=20
Principles Governing Default Judgments When a default judgment on an=20
unliquidated claim is entered, all factual allegations set forth =
in the=20
petition are deemed admitted except for the amount of damages. =
Holt=20
Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. =
1992). Before=20
awarding unliquidated damages in a default judgment, a trial court =
must=20
hear evidence of those damages. Tex. R. Civ. P. 243; =
Heine, 835=20
S.W.2d at 83. A plaintiff in a default judgment must prove a =
"causal=20
nexus" between the event made the basis of the suit and the =
plaintiff's=20
injuries. Morgan v. Compugraphic Corp., 675 S.W.2d 729, =
732 (Tex.=20
1984). "Proving that the event sued upon caused the plaintiff's =
alleged=20
injuries is part and parcel of proving the amount of damages to =
which the=20
plaintiff is entitled." Id. If no findings of fact or =
conclusions of=20
law are filed or requested in a bench trial, we will assume that =
the trial=20
court made all findings necessary to support its judgment, but =
when a=20
reporter's record is made part of the record, these implied =
findings may=20
be challenged for factual or legal sufficiency. Heine, =
835 S.W.2d=20
at 83-84. This Court may sustain a legal sufficiency, or no =
evidence=20
point, only if the record reveals one of the following: (1) there =
is a=20
complete absence of a vital fact; (2) the court is barred by rules =
of law=20
or of evidence from giving weight to the only evidence offered to =
prove a=20
vital fact; (3) the evidence offered to prove a vital fact is no =
more than=20
a scintilla; or (4) the evidence conclusively proved the opposite =
of the=20
vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 =
(Tex.=20
2005). B. Medical=20
Expenses Bowler first contends that =
Metro=20
presented legally insufficient evidence to show a causal link =
between the=20
accident underlying the suit and the medical expenses claimed by =
Metro.=20
Specifically, Bowler bases this challenge on the following: (1) =
Metro did=20
not show that Haughton was in good health before the accident; (2) =
Metro=20
offered no medical expert testimony to support causation; and (3) =
the=20
affidavits offered to support the medical expenses do not address =
the=20
issue of causation. We disagree with each of Bowler's specific=20
contentions. In Jackson v. =
Gutierrez, the=20
Fourteenth Court of Appels addressed, in the context of a =
no-answer=20
default judgment, whether a causal nexus can be established =
between the=20
accident and the damages without evidence that the plaintiff was =
in good=20
health prior to the accident. 77 S.W.3d 898, 902 (Tex. =
App.--Houston [14th=20
Dist.] 2002, no pet.). There, the plaintiff testified that her =
damages had=20
all occurred "as a result of the accident." Id. The =
Jackson=20
court held that such testimony was alone sufficient to show a =
causal=20
nexus without showing proof of the plaintiff's good health prior =
to the=20
accident. See id. Similarly, in this case, Metro =
presented affidavit testimony that Metro paid, on behalf of =
Haughton,=20
$15,813.24 in medical bills "resulting from the collision made the =
basis=20
of the lawsuit." Thus, no proof of Haughton's prior good health =
was=20
required. See id. Bowler also contends that Metro =
was=20
required to submit medical expert testimony to support causation. =
In=20
Morgan, a default judgment case, the Supreme Court of =
Texas=20
wrote, "Lay testimony is adequate to prove causation in those =
cases in=20
which general experience and common sense will enable a layman to=20
determine, with reasonable probability, the causal relationship =
between=20
the event and the condition." 675 S.W.2d at 733. In contrast, =
other courts=20
addressing this issue have concluded that expert medical testimony =
is required when the record identifies more than one =
cause of the=20
plaintiff's injuries because "[g]eneral experience and common =
sense simply=20
do not enable a fair understanding of causation under these =
circumstances;=20
accordingly, expert testimony is required." Praytor v. Ford =
Motor=20
Co., 97 S.W.3d 237, 241 (Tex. App.--Houston [14th Dist.] =
2002, no=20
pet.); accord Coastal Tankships, U.S.A., Inc. v. =
Anderson, 87=20
S.W.3d 591, 603 (Tex. App.--Houston [1st Dist.] 2002, pet. =
denied). But,=20
when the record identifies only one cause of the =
plaintiff's=20
injuries, medical expert testimony is not required. See Byrd =
v.=20
Delasancha, 195 S.W.3d 834, 839 (Tex. App.--Dallas =
2006, no=20
pet.). Here, the record does not reveal or suggest more than one =
cause of=20
Haughton's injuries; rather, the accident is the only identified =
cause.=20
Thus, medical expert testimony was not required to show a causal =
nexus in=20
this case. See id. Bowler also contends that the =
affidavits=20
offered by Metro did not address causation. As mentioned, =
Mitchell's=20
affidavit expressly stated that Metro paid, on behalf of Haughton, =
$15,813.24 in medical bills "resulting from the collision made the =
basis=20
of the lawsuit." Other courts have held, in the context of =
no-answer=20
default judgments, that testimony indicating that a plaintiff's =
damages=20
resulted from the event made the basis of the suit was alone =
legally=20
sufficient evidence to establish a causal link. See =
Jackson, 77=20
S.W.3d at 902 (concluding that testimony that damages had all =
occurred "as=20
a result of the accident" was alone sufficient to show a causal=20
nexus); see also Warren v. Zamarron, No. 03-03-00620-CV, =
2005 WL=20
1038822, at *5 (Tex. App.--Austin May 5, 2005, no pet.) (mem. op.) =
(holding that testimony that plaintiff sustained certain physical =
injuries=20
"as a result of" the accident caused by defendant was sufficient =
to=20
establish causal nexus); Transport Concepts, Inc. v. =
Reeves, 748=20
S.W.2d 302, 305 (Tex. App.--Dallas 1988, no writ) (same). =
Likewise, we=20
conclude that Mitchell's "resulting from" testimony is legally =
sufficient=20
evidence to show a causal nexus between the accident underlying =
the suit=20
and the medical expenses paid by Metro on behalf of Haughton. =
C. Lost =
Wages Bowler also contends that Metro =
presented=20
legally insufficient evidence to show a causal nexus between the =
accident=20
and Haughton's lost wages paid by Metro. Metro offered an =
affidavit signed=20
by Mitchell in which Mitchell testified that "Metro paid =
$34,922.74 in=20
lost wages (temporary income benefits) to employee Natalie =
Haughton=20
incurred as a result of injuries she sustained in the collision =
made the=20
basis of this lawsuit for time missed from September 8, 2003 to =
October=20
17, 2005." We conclude that this testimony was sufficient to show =
a causal=20
nexus between the accident and Haughton's lost wages. See=20
Jackson, 77 S.W.3d at 902 (holding that testimony that =
plaintiff=20
"lost wages" "as a result of the accident" was sufficient to =
satisfy=20
causal nexus requirement). Bowler also challenges Metro's =
proof=20
underlying the damages regarding lost wages. Bowler asserts that =
"the=20
correct measure of damages in a personal injury case is loss of =
earning=20
capacity and not lost wages." We observe that other courts have =
considered=20
lost wages to be evidence of loss of earning capacity. See =
McIver v.=20
Gloria, 169 S.W.2d 710, 712 (Tex. 1943) (describing lost =
wages as a=20
measure of lost earning capacity); City of San Antonio v. =
Vela,=20
762 S.W.2d 314, 320 (Tex. App.--San Antonio 1988, writ denied) =
(holding=20
that testimony regarding lost wages was legally sufficient to =
support=20
damages for past lost earning capacity). Thus, assuming that =
Bowler is=20
correct regarding the proper measure of damages, Metro's evidence =
of lost=20
wages was legally sufficient evidence to support past lost earning =
capacity. See Vela, 762 S.W.2d at 320. Bowler also contends that =
"there must be=20
some proof that the injured party had some =
capacity to=20
earn money before the injury and the injury resulted in =
some=20
impairment to the injured party's ability to work." (Emphasis =
added.)=20
Here, the evidence submitted to the trial court showed that, (1) =
on the=20
date of the accident, July 16, 2003, Haughton was a Metro =
employee, who=20
was operating a bus; (2) Metro paid workers' compensation medical =
benefits=20
to Haughton as a result of the accident; (3) Metro paid lost wages =
"to=20
employee Haughton incurred as a result of injuries she sustained =
in the=20
collision made the basis of the lawsuit for the time missed from =
September=20
8, 2004 to October 17, 2005." We conclude that the evidence =
submitted to=20
the trial court was legally sufficient to show that Haughton had =
"some=20
capacity to earn money before the injury and that the injury =
resulted in=20
some impairment to [her] ability to work." Lastly, Bowler contends that =
Metro's=20
supporting business records show that "not all of [Metro's] =
payments were=20
for lost wages." Bowler points out that, for example, the business =
records=20
reflect that Metro paid an attorney to represent Haughton in the =
workers'=20
compensation proceeding and asserts that such attorney's fees are =
not=20
recoverable from Bowler. Here, the record reflects that Metro =
sought to=20
recover only the lost wage benefits paid to Haughton and no other =
sums=20
paid, though other sums may be reflected in its business records. =
That is,=20
Metro made clear that it was seeking only "$34,922.74 in lost =
wages=20
(temporary income benefits)" paid to Haughton. Metro sought no =
other sums,=20
including the attorney's fees itemized in its business =
records. We overrule Bowler's sole=20
issue.
We affirm the =
judgment=20
of the trial court. Laura Carter Higley Justice Panel consists of Justices =
Nuchia, Keyes,=20
and Higley.=20
1. Bowler filed this as a restricted appeal. =
However,=20
on July 3, 2006, this Court granted Bowler's motion to extend time =
to file=20
his notice of appeal. Therefore, we treat this as an ordinary =
appeal,=20
rather than a restricted appeal. For this reason, we do not review =
Bowler's no-evidence complaint in terms of "error on the face of =
record,"=20
as we do in restricted appeals. Thus, to the extent that Bowler =
raised=20
"error on the face of the record" as a separate issue, it is =
overruled as=20
moot.