AFFIRMED IN PART, REVERSED IN PART, AND REMANDED and 

Opinion Filed August 28, 2024 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-23-00765-CV 

ALEXANDER FERNANDEZ AND 

VERONICA GUERRERO GUTIERREZ, Appellants 

V. 

OMARI DUNLAP AND LILLIE SAYLES (A/N/F MINOR L.G.), Appellees 

On Appeal from the 160th Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. DC-21-10756 

MEMORANDUM OPINION 

Before Justices Garcia, Breedlove, and Kennedy 

Opinion by Justice Garcia 

This is a car-crash case. Defendants-appellants did not appear for trial. After 

taking evidence in the form of affidavits and other documentary evidence, the trial 

judge rendered judgment in favor of plaintiffs-appellees for damages totaling about 

$145,000. On appeal, defendants raise complaints about (1) lack of service of 

process, (2) lack of notice of the trial and subsequent final disposition hearing, (3) an 

error in the judgment’s identification of one of the defendants, and (4) the 

sufficiency of the evidence to support certain categories of damages awarded to the 
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plaintiffs. We sustain the sufficiency challenges as to the awards for damage to 

appellee Lillie Sayles’s vehicle, overrule the rest of appellants’ issues, and remand 

the case for a new trial solely on Sayles’s property-damage claims. 

I. BACKGROUND

In August 2021, appellees sued two defendants for damages allegedly arising 

from a two-vehicle accident that occurred in December 2020. One defendant was 

appellant Veronica Guerrero Gutierrez. The other was an individual who was named 

“Alexander E. Fernandez” in the style of the case but merely “Alexander Fernandez” 

in the body of the petition. Appellees alleged that Fernandez, while driving a vehicle 

that Gutierrez had entrusted to him, ran into another vehicle in which appellee Omari 

Dunlap and minor L.G. were riding as passengers. They further alleged that Dunlap 

and L.G. were injured in the accident. 

The record reflects that process was served on “Alexander E. Fernandez” in 

Plano on September 29, 2021, and was served on “Alexander Fernandez” in 

Lancaster on October 8, 2021. 

On October 15, 2021, a joint answer was filed for Alexander E. Fernandez 

and Gutierrez by an attorney with the Manuel Diaz Law Firm, P.C. That same day, 

an attorney with the Lanza Law Firm, P.C. filed a separate answer solely on behalf 

of Alexander E. Fernandez. 

On January 28, 2022, appellees filed an amended petition against Gutierrez 

and “Alexander Fernandez.” They explained that they were filing the amended 
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petition because originally they mistakenly sued and served Alexander E. Fernandez 

instead of Alexander Fernandez. That same day, appellees also filed a motion to 

nonsuit Alexander E. Fernandez. On February 1, 2022, the trial judge signed an order 

dismissing Alexander E. Fernandez from the case. The computerized docket sheet 

reflects that citation was issued in connection with the amended petition, but it lists 

this citation as “unserved” as to Alexander Fernandez. 

On April 5, 2022, the Manuel Diaz Law Firm filed a motion to withdraw from 

representing “Defendants, Alexander Fernandez and Veronica Guerrero Gutierrez.” 

The motion recited that both defendants had the same last known address in 

Lancaster. On April 12, 2022, the trial judge signed an order granting the motion to 

withdraw. 

The docket sheet includes an entry indicating that the case was set for the jury 

trial the morning of March 6, 2023. 

The final judgment recites that the case was reached for jury trial on March 7, 

2023, but “Defendants” did not appear. The judgment further recites that appellees 

waived trial by jury and that “[t]he cause then proceeded to trial by submitting 

affidavits by the Plaintiffs introducing evidence to the Court.” We do not have a 

reporter’s record for the March 7 proceedings. 

Next, the docket sheet reflects that a “Final Disposition Hearing” took place 

on April 11, 2023. That docket entry includes the note “TRIAL HELD 3-7-23; 

WAITING ON AFFIDAVITS FROM P.” The trial court’s notice letters to the parties 
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state that the April 11 setting was for “FINAL DISPOSITION BY SUBMISSION,” 

which suggests that no live hearing was held. If there was a live hearing on April 11, 

we do not have a reporter’s record from it. 

On May 17, 2023, each appellee filed an affidavit with additional documents 

attached. 

On May 22, 2023, appellants jointly filed a first amended answer, which was 

signed by a new lawyer from the Keramidas Law Firm. 

The docket sheet indicates that a “Final Disposition Hearing” took place on 

May 23, 2023. As with the April 11 setting, the trial court’s notices to the parties 

about this setting state that it would be conducted by submission. If there was a live 

hearing on May 23, we do not have a reporter’s record from it. 

On May 24, 2023, the trial judge signed the final judgment. The judgment 

awards appellees a total of roughly $145,000 in damages and almost $20,000 in 

prejudgment interest. Both the style and the body of the final judgment refer to 

Fernandez as “Alexander E. Fernandez” rather than “Alexander Fernandez.” The 

judgment includes language sufficient to make it final. See Lehmann v. Har-Con 

Corp., 39 S.W.3d 191, 206 (Tex. 2001). 

Gutierrez timely filed a motion to set aside the judgment and for a new trial, 

arguing that she had not received notice of the trial setting or of the May 23 final 

disposition hearing. Appellees filed a response, and the trial judge held a non-
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evidentiary hearing on Gutierrez’s motion. The judge denied Gutierrez’s motion by 

written order. 

Fernandez and Gutierrez timely appealed. They filed a joint appellants’ brief, 

and appellees likewise filed a joint brief. Appellants did not file a reply brief, and 

we submitted this appeal without oral argument. 

II. ISSUES PRESENTED

Appellants raise seven issues on appeal, which we paraphrase as follows: 

1. The judgment against Fernandez is invalid for lack of proper 

service of appellees’ first amended petition. 

2. The judgment is invalid because appellants answered before the 

judgment was signed but did not receive notice of the trial setting 

or the final disposition hearing. 

3. The judgment is invalid because it incorrectly names a nonsuited 

individual as a defendant. 

4. The award for L.G.’s future medical expenses is supported by 

legally or factually insufficient evidence. 

5. The awards for Dunlap’s and L.G.’s past impairment and mental 

anguish are supported by legally or factually insufficient 

evidence. 

6. The awards for Dunlap’s and L.G.’s past pain and suffering and 

for L.G.’s future pain and suffering are supported by legally or 

factually insufficient evidence. 

7. The awards for property damage and loss of use of a vehicle are 

supported by legally or factually insufficient evidence. 
 –6– 

III. ANALYSIS

A. Issue One: Is the judgment against Fernandez invalid for lack of proper 

service of appellees’ first amended petition? 

Appellants’ first issue concerns only appellant Fernandez. He argues that there 

is no record evidence that he was ever served with process regarding appellees’ first 

amended petition, so the judgment must be reversed as to him. 

Appellees respond that Fernandez made a general appearance by joining in 

the first amended answer that was filed on May 22, 2023—the day before a final 

disposition hearing and two days before the final judgment was signed. See TEX. R.

CIV. P. 121 (“An answer shall constitute an appearance of the defendant so as to 

dispense with the necessity for the issuance or service of citation upon him.”). That 

answer specifically refers to appellees’ first amended petition. 

Fernandez’s argument is based solely on the alleged absence of service of 

process on him; he does not address the fact that he answered appellees’ first 

amended petition two days before the trial judge signed the final judgment. Under 

Rule 121, the answer constituted a general appearance and waived any complaints 

about service of process. See id.; Phillips v. Dallas Cnty. Child Protective Servs. 

Unit, 197 S.W.3d 862, 865 (Tex. App.—Dallas 2006, pet. denied) (“[F]iling an 

answer waives any complaints about service.”). Thus, when the judgment was signed 

Fernandez had already submitted to the trial court’s jurisdiction and was before the 

court for all purposes. See Cooper v. Hunt, No. 05-14-00928-CV, 2016 WL 

1213299, at *4 (Tex. App.—Dallas Mar. 29, 2016, no pet.) (mem. op.) (“A defendant 
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who enters an appearance by filing an answer is before the court for all purposes.”) 

(internal quotation and citation omitted); see also CIGNA Ins. Co. v. TPG Store, Inc., 

894 S.W.2d 431, 434 (Tex. App.—Austin 1995, no writ) (“Although service is 

required before a judgment can be rendered against a defendant, a trial court can 

render judgment if a defendant either waives service or voluntarily appears before 

the court.”). 

For these reasons, we overrule appellants’ first issue on appeal. 

B. Issue Two: Is the judgment erroneous because appellants answered 

before the judgment was signed but did not receive notice of the trial 

setting or the final disposition hearing? 

In their second issue, appellants complain that they did not receive notice of 

either the trial date or the final disposition hearing even though they had answered 

the lawsuit before judgment was signed. They contend that this defect entitles them 

to relief under Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 

[Comm’n Op.] 1939), and Mathis v. Lockwood, 166 S.W.3d 743 (Tex. 2005) (per 

curiam). 

We address error preservation before turning to the merits of this issue. 

1. Fernandez’s Failure to Preserve Error 

Although the parties do not discuss error preservation, we conclude that 

Fernandez has not preserved for appeal any complaint about notice of the trial or the 

May 23 final disposition hearing. 
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Generally, a party may not raise a complaint on appeal unless the record shows 

that he (i) made the complaint to the trial court by a proper and timely request, 

objection, or motion and (ii) either obtained a ruling or objected to the trial judge’s 

failure to rule. See TEX. R. APP. P. 33.1(a). 

In this case, Gutierrez raised a lack-of-notice complaint in the trial court in 

her motion to set aside judgment and for new trial. But Fernandez did not join in that 

motion. See In re M.H., No. 05-22-00017-CV, 2022 WL 3135919, at *8 (Tex. 

App.—Dallas Aug. 5, 2022, no pet.) (mem. op.) (stating that a party cannot rely upon 

another party’s objection to preserve error). Nor did Fernandez raise a lack-of-notice 

complaint in the trial court by any other means. The records shows that Fernandez 

had the same opportunity to raise the complaint that Gutierrez did—they were 

represented by the same lawyer, who filed a joint answer for both Fernandez and 

Gutierrez before judgment but then filed the postjudgment motion to set aside 

judgment and for new trial on behalf of Gutierrez alone. See Nelson v. Methodist 

Dallas Med. Ctr., No. 05-21-00925-CV, 2022 WL 4103089, at *1 (Tex. App.—

Dallas Sept. 8, 2022, pet. denied) (mem. op.) (“[I]n the context of an enduring 

attorney–client relationship, knowledge acquired by the attorney is imputed to the 

client.”) (internal quotation and citation omitted). 

Because Fernandez did not raise a lack-of-notice complaint in the trial court, 

he cannot raise it on appeal. See In re M.M.M., No. 05-19-00392-CV, 2019 WL 

4744694, at *3–4 (Tex. App.—Dallas Sept. 30, 2019, pet. denied) (mem. op.) 
 –9– 

(holding that defendant forfeited lack-of-notice argument by failing to file a motion 

for new trial). We overrule appellants’ second issue as to Fernandez. 

2. Gutierrez’s Lack-of-Notice Complaint 

Gutierrez preserved her lack-of-notice complaint by raising it in her motion 

for new trial. We review the denial of that motion for abuse of discretion. See Dugan 

v. Compass Bank, 129 S.W.3d 579, 582 (Tex. App.—Dallas 2003, no pet.). A trial 

judge abuses her discretion if (i) she fails to analyze or apply the law correctly, or 

(ii) with regard to factual matters or matters committed to her discretion, she could 

reasonably reach only one decision and failed to do so. VSDH Vaquero Venture, Ltd. 

v. Gross, No. 05-19-00217-CV, 2020 WL 3248481, at *4 (Tex. App.—Dallas June 

16, 2020, no pet.) (mem. op.). 

Appellees argue that Gutierrez’s complaint fails because (i) her new-trial 

motion was procedurally defective because it was not supported with an affidavit 

and (ii) in any event, Gutierrez bore the burden to overcome the presumption that 

she received notice, and she necessarily failed to carry her burden because she 

adduced no evidence that she did not receive notice. 

A defendant is entitled to relief from a post-answer default judgment if (i) the 

defendant’s failure to appear was not intentional or the result of conscious 

indifference but rather was due to an accident or mistake, (ii) the defendant’s motion 

for new trial sets up a meritorious defense, and (iii) the granting of the motion will 

occasion no delay and will not otherwise work an injury to the plaintiff. Carillo v. 
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Zaragoza, No. 05-23-00282-CV, 2024 WL 2873635, at *2 (Tex. App.—Dallas June 

7, 2024, no pet. h.) (mem. op.). If the defaulting defendant was not given notice of 

the trial setting, the first element is satisfied, and the defendant need not prove the 

second and third elements. See id.; see also Mathis, 166 S.W.3d at 744 (indicating 

that a new-trial movant bears the burden of proving lack of notice of a trial setting). 

The law generally presumes that a trial judge hears a case only after proper 

notice to the parties. Hanners v. State Bar of Tex., 860 S.W.2d 903, 908 (Tex. App.—

Dallas 1993, writ dism’d); accord In re B.A.E., No. 05-12-01113-CV, 2013 WL 

4041551, at *2 (Tex. App.—Dallas Aug. 9, 2013) (mem. op.), supp. op. on reh’g, 

2013 WL 5827851 (Tex. App.—Dallas Oct. 29, 2013, pet. denied) (mem. op.); 

D’Olivio v. Hermus, No. 05-18-01126-CV, 2020 WL 3396441, at *3 (Tex. App.—

Dallas June 19, 2020, pet. denied) (mem. op.). To overcome this presumption, the 

appellant must affirmatively show lack of notice. Hanners, 860 S.W.2d at 908. The 

appellant cannot discharge this burden with mere allegations in a motion for new 

trial; rather, she must show by affidavits or other competent evidence that proper 

notice was not received. Id.; see also Mathis, 166 S.W.3d at 744–45 (holding that 

new-trial movant overcame the presumption with (i) sworn motion denying notice 

of the trial setting and (ii) testimony at the new-trial hearing denying receipt of 

notice). 

Here, Gutierrez’s new-trial motion was unverified and unsupported by 

evidence. She also failed to introduce any evidence disproving notice at the new-
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trial hearing. Accordingly, Gutierrez failed to rebut the presumption of notice, and 

the trial judge did not abuse her discretion by denying Gutierrez’s motion for new 

trial. See D’Olivio, 2020 WL 3396441, at *3; In re B.A.E., 2013 WL 4041551, at 

*2–3; see also Jones-Gilder v. Gilder, No. 05-22-00517-CV, 2023 WL 3114675, at 

*2 (Tex. App.—Dallas Apr. 27, 2023, no pet.) (mem. op.) (“Because nothing in the 

record affirmatively shows a lack of notice, Wife has not overcome the presumption 

of proper notice.”). 

3. Conclusion 

We overrule appellants’ second issue on appeal. 

C. Issue Three: Is the judgment invalid because it incorrectly names a 

nonsuited individual as a defendant? 

In their third issue, appellants point out that the judgment names the liable 

defendants as Gutierrez and “Alexander E. Fernandez” even though the trial judge 

had previously dismissed Alexander E. Fernandez from the suit based on appellees’ 

nonsuit. Appellants contend (i) that this error is evidence that appellant Fernandez 

was never served or given notice of the suit and (ii) that the judgment is invalid as 

to appellant Fernandez. Gutierrez raised this error in her motion for new trial. 

Appellees respond that a misnomer in a judgment does not invalidate the judgment 

as between parties if the record and judgment together point out with certainty the 

persons and subject matter to be bound. 

We disagree with appellants’ initial contention that the erroneous inclusion of 

a nonsuited defendant in the judgment shows that appellant Fernandez was not 
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properly served or given notice of the suit. The fact that the judgment erroneously 

refers to “Alexander E. Fernandez” instead of Alexander Fernandez appears to be a 

scrivener’s error, and it says nothing about whether Fernandez was served or 

received notice. 

As for appellants’ contention that the judgment is “invalid” as to appellant 

Fernandez, they cite no authority in support. The failure to cite authority forfeits the 

argument. See TEX. R. APP. P. 38.1(i) (argument section of appellant’s brief must 

contain “appropriate citations to authorities”). 

We overrule appellants’ third issue on appeal. 

D. Issues Four Through Seven: Is the evidence legally or factually 

insufficient to support certain awards of damages? 

In their remaining issues, appellants challenge the sufficiency of the evidence 

to support certain damages awards in the judgment. 

1. Background 

Before turning to appellants’ sufficiency issues, we briefly summarize the 

procedural posture of the case, the evidence that was before the trial judge, and the 

damages findings. 

a. Procedural Posture 

The procedural posture of this case is unusual. Neither appellant appeared at 

trial on March 7, 2023. Gutierrez had answered before trial, so as to her the judgment 

is a “post-answer default.” See Hanners, 860 S.W.2d at 910. This means that all 

issues were in dispute as to Gutierrez, and appellees were required to offer evidence 
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at trial to prove their claims against her. See id.; see also Rhodes v. Kelly, No. 05-

16-00888-CV, 2017 WL 2774452, at *10 (Tex. App.—Dallas June 27, 2017, pet. 

denied) (“[A] post-answer default judgment can generally be challenged for 

sufficiency of the evidence.”). 

It is less clear whether Fernandez’s default should be treated as a no-answer 

default or a post-answer default. Given that two pre-trial answers were filed on 

behalf of “Alexander E. Fernandez” on the same day by two different law firms, it 

is plausible that one of those answers was intended to be filed for appellant 

Fernandez and the other was filed for the subsequently nonsuited “Alexander E. 

Fernandez.” Also, it is undisputed that appellant Fernandez joined with Gutierrez in 

a first amended answer that was filed after trial but before judgment was signed. 

Moreover, appellees do not argue in their appellate brief that we should treat the 

judgment as to Fernandez as a no-answer default judgment. In the end, though, the 

distinction between no-answer defaults and post-answer defaults is irrelevant 

because appellants challenge only the trial judge’s damages findings. In a noanswer-default situation, all alleged facts are deemed admitted except the amount of 

unliquidated damages. See Guardiola v. Moosa, No. 05-20-00503-CV, 2021 WL 

1220694, at *3 (Tex. App.—Dallas Apr. 1, 2021, no pet.) (mem. op.). Thus, 

Fernandez can challenge the sufficiency of the evidence to support the damages 

findings just like Gutierrez can. See Argyle Mech., Inc. v. Unigus Steel, Inc., 156 

S.W.3d 685, 687 (Tex. App.—Dallas 2005, no pet.) (“The legal and factual 
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sufficiency of evidentiary support for unliquidated damages may be challenged on 

appeal from a no-answer default judgment.”) (footnote omitted); see also TEX. R.

APP. P. 33.1(d) (after bench trial, sufficiency points may be raised for the first time 

on appeal). 

b. The Evidence and the Damages Findings 

As for the evidence, the May 24, 2023 final judgment indicates that no 

evidence was admitted when the case was called for trial. It recites that appellees 

waived trial by jury, and “[t]he cause then proceeded to trial by submitting affidavits 

by the Plaintiffs introducing evidence to the Court.” The clerk’s record contains 

affidavits by Dunlap and Sayles filed on May 17, 2023. Neither side contends that 

the trial judge had any evidence before her other than the May 17 affidavits and their 

attachments. Thus, we will presume that the trial judge took no evidence at the trial 

or at either of the two “final disposition hearings” listed on the docket sheet, and we 

will treat appellees’ affidavits and attachments as the entirety of the evidence before 

the trial judge. 

The final judgment contains the following damages awards: 

• $3,687 for Dunlap’s past medical expenses; 

• $7,374 for Dunlap’s past pain, suffering, and mental anguish; 

• $7,374 for Dunlap’s past impairment; 

• $12,495.08 for L.G.’s past medical expenses; 

• $9,950 for L.G.’s future medical expenses; 

• $24,990.16 for L.G.’s past pain and suffering; 

• $4,975 for L.G.’s future pain and suffering; 

• $24,990.16 for L.G.’s past impairment and mental anguish; 

• $34,609.56 for Sayles’s property damage; and 
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• $15,000 for Sayles’s loss of use of her vehicle from the date of 

the accident to the present. 

Because the record does not contain any other findings of fact, we accept these 

as valid findings. See Lee v. Paik, No. 05-17-01406-CV, 2019 WL 1033869, at *2 

(Tex. App.—Dallas Mar. 5, 2019, no pet.) (mem. op.). 

2. Standards of Review 

We review a trial court’s fact findings under the same legal and factual 

sufficiency standards that apply to a jury’s findings. Catalina v. Blasdel, 881 S.W.2d 

295, 297 (Tex. 1994). 

When an appellant attacks the legal sufficiency of the evidence to support an 

adverse finding on an issue on which she did not have the burden of proof, she must 

show that no evidence supports the finding. Guillory v. Dietrich, 598 S.W.3d 284, 

293 (Tex. App.—Dallas 2020, pet. denied). When evidence is so weak that it does 

no more than create a surmise or suspicion of the matter to be proved, the evidence 

is no more than a scintilla and, in legal effect, is no evidence. Id. The evidence is 

legally sufficient if it is sufficient to enable reasonable and fair-minded people to 

reach the finding under review. Id. In conducting our review, we view the evidence 

in the light most favorable to the finding and indulge every reasonable inference that 

would support it. Id. We must credit evidence favorable to the finding if a reasonable 

person could, and we must disregard contrary evidence unless a reasonable person 

could not. Id. 
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When an appellant challenges the factual sufficiency of the evidence to 

support an adverse finding on an issue on which it did not have the burden of proof, 

it must demonstrate that there is insufficient evidence to support the adverse finding. 

See Griggs v. Cohen, No. 05-19-01174-CV, 2020 WL 6128225, at *2 (Tex. App.—

Dallas Oct. 19, 2020, no pet.) (mem. op.). In reviewing the challenge, we consider 

all the evidence in the record and set the finding aside only if the evidence supporting 

the finding is so weak or the finding is so against the overwhelming weight of the 

evidence that the finding is clearly wrong and unjust. See id. 

3. Summary of the Evidence 

Viewed in the light most favorable to the judgment, the affidavits and the 

attachments to them generally showed the following. 

Medical records state that Sayles is Dunlap’s and L.G.’s grandmother. 

On December 20, 2020, Dunlap and L.G. were passengers in the back seat of 

a 2017 GMC Sierra when that vehicle was T-boned by a Chevrolet C10 driven by 

Fernandez. Dunlap was 17 at the time of the accident, and L.G. was 12. Dunlap 

suffered a concussion in the accident, lost consciousness for about ten minutes, and 

experienced pain in his left shoulder, hip, and groin. L.G. suffered injuries to her 

abdomen, left elbow, right ribs, and right ankle. Sayles and her husband owned the 

Sierra involved in the accident. 

The day after the accident, both Dunlap and L.G. were treated at the Parkland 

Hospital emergency department and released. 
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Records indicate that Dunlap sought additional medical treatment for pain in 

January and February 2021. Dunlap’s affidavit, which he signed about one month 

before the final judgment was signed, recited, “Since the collision, I have been 

experiencing fear/anxiety of driving,” and, “I have also suffered from muscle spasms 

that occur randomly in my left shoulder, affecting my routine daily activities.” 

Medical records show that L.G. obtained treatment at a pain clinic from 

January 7 to April 7, 2021. The clinic’s final report noted that a specialist in pain 

management recommended that L.G. use analgesics and continue therapy and that 

she should receive an injection if her pain persisted. In her affidavit, Sayles testified 

that L.G. “has been experiencing fear/anxiety of traveling with a motor vehicle” and 

that L.G. “has some pain lingering in her left knee and her right ankle.” 

Sayles’s affidavit also said that she obtained a property-damage estimate of 

$34,609.56 and that she was requesting $15,000 for loss of use of the Sierra from 

the date of the accident to the present. 

4. Appellants’ Specific Challenges 

a. Issue Four: Future Medical Expenses 

The trial judge awarded $9,950 in damages for L.G.’s future medical 

expenses. In issue four, appellants contend that there is no evidence or factually 

insufficient evidence to support this award. We disagree for the following reasons. 

To recover future medical expenses, a plaintiff must show there is a 

reasonable probability that such expenses will be incurred in the future. Sanmina-
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SCI Corp. v. Ogburn, 153 S.W.3d 639, 642 (Tex. App.—Dallas 2004, pet. denied). 

This includes evidence proving that, in all reasonable probability, future medical 

care will be required and the reasonable cost of such care. Id. The factfinder may 

base an award on the nature of the plaintiff’s injuries, the plaintiff’s past medical 

treatment, and the plaintiff’s condition at trial. Griggs, 2020 WL 6128225, at *2. 

Because issues such as life expectancy, medical advances, and the future cost of 

medical products and services are inherently uncertain, appellate courts are 

particularly reluctant to disturb these awards. See Sanmina-SCI Corp., 153 S.W.3d 

at 643. 

The $9,950 award of future medical expenses is supported by the following 

evidence. Sayles testified in her affidavit, “[M]edical doctors who treated Minor, 

L.G. estimated her future medical expenses in an amount of not lower than 

$9,950.00.” The April 7, 2021 final report from Premier Injury Clinics of DFW 

recites as follows: 

There is a reasonable degree of medical probability that [L.G.] will 

require future care at some point in her life to include, but not limited 

to, further rehabilitation, chiropractic care, and pain management. I 

expect that her future medical expenses from this accident could be as 

follows: Therapy rehabilitation will be around $1,500–2,000. 

A March 2021 progress note from a doctor at Momentum Spine & Joint recites, 

“Recommendation for treatment if symptoms or condition worsens: Right Ankle 

Injection.” An undated estimate for a “RIGHT ANKLE INJECTION” that appears 

on Momentum Spine & Joint letterhead recites an estimate of $7,950. And Sayles 
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testified in her affidavit signed just one month before the judgment was signed that 

L.G. was still experiencing pain in her right ankle. 

Based on the totality of the evidence and our great deference to the factfinder 

when it comes to future medical expenses, we conclude that the evidence is legally 

and factually sufficient to support the $9,950 award. See Griggs, 2020 WL 6128225, 

at *2–3 (upholding future-medical-expenses award of $10,600 based on evidence 

that plaintiff continued to experience pain and would most likely continue to 

experience problems that “could have to be addressed in the future”). We overrule 

appellants’ fourth issue. 

b. Issue Five: Dunlap’s Past-Impairment Damages 

The trial judge found that Dunlap’s damages for past impairment were $7,374. 

As part of their fifth issue, appellants contend that there is insufficient evidence to 

support a finding of any past impairment. 

Physical impairment is a category of personal-injury damages. See Golden 

Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 772 (Tex. 2003). If the factfinder 

treats physical impairment separately from elements such as pain, suffering, mental 

anguish, and disfigurement, loss of enjoyment of life is the main loss that physicalimpairment damages are intended to compensate. See id. If these elements are 

submitted separately in a jury case, the jury should be instructed that (i) the effect of 

any physical impairment must be substantial and extend beyond any pain, suffering, 
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mental anguish, lost wages, or diminished earning capacity and (ii) a claimant should 

not be compensated more than once for the same elements of loss or injury. See id. 

We reject appellants’ argument. Dunlap testified by affidavit that after the 

accident he experienced “fear/anxiety of driving” and that he suffered from random 

muscle spasms in his left shoulder that affected his routine daily activities. He also 

testified that he suffered a concussion, which the trial judge could infer limited 

Dunlap’s activities during the recovery period. A medical record from a visit to a 

Premier Injury Clinics of DFW facility about two and a half weeks after the accident 

recites: “Since the accident [Dunlap] has been experiencing difficulties while 

performing the following activities: Domestic (inside): chores, hobbies, walking.” 

The health-care provider also recorded that he advised Dunlap against any strenuous 

activities “for the time being.” Records indicate that Dunlap received massage 

therapy and exercise therapy for his injuries several times. We conclude that there is 

legally and factually sufficient evidence that Dunlap experienced some compensable 

physical impairment as a result of the accident. See Guardiola, 2021 WL 1220694, 

at *4 (evidence that plaintiff engaged in physiotherapy and exercises for car-wreck 

injuries was sufficient to support physical-impairment damages). 

c. Issues Five and Six: Dunlap’s Damages for Past Pain, 

Suffering, and Mental Anguish 

The trial judge awarded Dunlap $7,374 for Dunlap’s “pain and suffering and 

mental anguish incurred in the past.” As parts of their fifth and sixth issues, 

appellants argue (i) that Dunlap adduced no evidence of compensable mental 
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anguish and (ii) because the judge combined Dunlap’s mental-anguish damages with 

his pain-and-suffering damages, it is impossible to tell how much of the award is 

attributable to each component. Appellants’ second point is factually correct, but it 

is actually detrimental to appellants’ sufficiency challenge. 

If a trial judge makes a damages finding that combines multiple elements of 

damages, and one of those elements is unsupported by the evidence, the aggrieved 

party must preserve this complaint by proper action in the trial court. See Macy’s 

Retail Holdings, Inc. v. Benavides, No. 05-19-01264-CV, 2021 WL 3573363, at *11 

(Tex. App.—Dallas Aug. 12, 2021, pet. denied) (mem. op.). If the aggrieved party 

fails to do so, on appeal it is limited to challenging the sufficiency of the evidence 

to support the damages award as a whole. Id. The appellate court will uphold the 

award if the amount is supported by sufficient evidence of any listed damages 

element. Id. And if the appellant does not challenge the sufficiency of the evidence 

to support the damages finding as a whole, the appellant forfeits the challenge. See

Ake v. Monroe, No. 04-05-00751-CV, 2006 WL 3017181, at *4 (Tex. App.—San 

Antonio Oct. 25, 2006, no pet.) (mem. op.). 

In this case, appellants made no complaint in the trial court that the judge had 

erred by not making a separate finding as to Dunlap’s mental-anguish damages 

alone. And they do not argue on appeal that the evidence is insufficient to support 

the combined award of $7,374 for Dunlap’s past pain, suffering, and mental anguish. 

Accordingly, we reject appellants’ challenges of that award. See id. Moreover, even 
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if appellants had challenged the award as a whole, we would conclude that the 

evidence of Dunlap’s pain and suffering from the accident is sufficient to support 

the entire award. Dunlap’s affidavit gives some description of the physical pain he 

experienced after the accident, and his medical records further show that he had 

ongoing pain for a few weeks after the accident. For this reason as well, we reject 

appellants’ challenge. 

d. Issue Five: L.G.’s Past Impairment and Mental-Anguish 

Damages 

The trial judge awarded L.G. $24,990.16 for “impairment and mental anguish 

incurred in the past.” As part of their fifth issue, appellants argue that there is 

insufficient evidence to support both components of this award. 

Because appellants did not complain in the trial court about the combined 

award for these two elements of damages, their burden on appeal is to show that 

neither element is supported by sufficient evidence. See Macy’s Retail Holdings, 

2021 WL 3573363, at *11. As noted above, a past-impairment finding can be 

supported with evidence that the plaintiff had to undergo therapy in order to recover 

from her injuries. See Guardiola, 2021 WL 1220694, at *4 (evidence that plaintiff 

engaged in physiotherapy and exercises for car-wreck injuries was sufficient to 

support physical-impairment damages). 

We conclude that the evidence that L.G. suffered past impairment is sufficient 

to support the award as a whole. According to Sayles’s affidavit, L.G. experienced 

a great deal of pain after the accident in her ribs, abdomen, left elbow, and right 
 –23– 

ankle. This pain extended through and after her medical treatment following the 

accident. L.G. still had lingering pain in her left knee and right ankle when Sayles 

signed her affidavit in April 2023, and Sayles also reported that both joints were 

“constantly popping” when L.G. walked, moved, and performed daily activities. 

Medical records show that L.G. was treated at Premier Injury Clinics of DFW for 

roughly three months after the accident. A January 7, 2021 report states that L.G. 

was “experiencing duress while performing the following activities: Domestic 

(inside): chores, hobbies, walking.” A March 4, 2021 report states that L.G.’s 

injuries were causing a sleep disorder and were affecting her ability to play sports. 

It appears that she received therapy, including massage and exercise therapy, on 

roughly 20 occasions from January 7 through April 1, 2021. According to the final 

report, L.G. experienced “moderate improvement with a course of conservative care 

[and her] ranges of motion have improved moderately.” 

Based on the foregoing evidence, we conclude that the award of $24,990.16 

to L.G. for past impairment and mental anguish is supported by legally and factually 

sufficient evidence. See Macy’s Retail Holdings, 2021 WL 3573363, at *11; 

Guardiola, 2021 WL 1220694, at *4. 

e. Issue Six: L.G.’s Past and Future Damages for Pain and 

Suffering 

The trial judge awarded L.G. $24,990.16 for her pain and suffering in the past 

and $4,975 for her pain and suffering in the future. As part of their sixth issue, 

appellants challenge the sufficiency of the evidence to support these awards. Given 
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the inherent subjectivity of pain and suffering, the trier of fact has broad discretion 

when determining such damages. D. Burch, Inc. v. Catchings, No. 05-08-00278-CV, 

2009 WL 2581862, at *4 (Tex. App.—Dallas Aug. 24, 2009, pet. denied) (mem. 

op.). 

As to L.G.’s past pain and suffering, we conclude that Sayles’s affidavit and 

L.G.’s medical records provide ample support for the award. The evidence shows 

that L.G.’s experienced pain at the time of the accident and ongoing pain for which 

she sought medical treatment for over three months following the accident. The 

medical records state that she occasionally lost sleep because of her pain. Sayles 

testified by affidavit that L.G. continued to experience pain after her treatment ended 

and still had lingering pain when Sayles signed her affidavit roughly one month 

before final judgment. Based on the foregoing evidence, we reject appellants’ 

challenge of the award for L.G.’s past pain and suffering. 

As for the award for L.G.’s future pain and suffering, appellants argue that 

there is no objective evidence that L.G.’s injuries will continue to adversely affect 

her in the future. They rely on cases such as Goldberg v. Dicks, in which the court 

said, “There must be some objective evidence that an injury will continue to 

adversely affect the party claiming such damages [for future physical pain].” No. 12-

02-00053-CV, 2004 WL 253250, at *17 (Tex. App.—Tyler Feb. 11, 2004, pet. 

denied) (mem. op.). 
 –25– 

We reject appellants’ argument. L.G.’s MRI report from March 2021 contains 

injury findings such as a “grade I strain of the insertion of the tibialis posterior 

tendon,” L.G.’s April 2021 final report from Premier Injury Clinics of DFW recites, 

“There is a reasonable degree of medical probability that the patient will require 

future care at some point in her life to include, but not limited to, further 

rehabilitation, chiropractic care, and pain management.” In her affidavit, Sayles 

testified that L.G. still had pain lingering in her left knee and right ankle only about 

a month before final judgment. To the extent Texas law require future-pain awards 

to be supported by “objective evidence” of continued adverse effects, we conclude 

that an MRI report plus an expert opinion expressed in terms of reasonable medical 

probability are enough to satisfy that requirement. See Wal-Mart Stores Tex., LP v. 

Crosby, 295 S.W.3d 346, 354 (Tex. App.—Dallas 2009, pet. denied) (holding that 

award for future pain and suffering was adequately supported by plaintiff’s 

testimony that he was still experiencing continuous pain and expert’s testimony that 

plaintiff would likely never be pain-free). We further conclude that the evidence 

taken as a whole is legally and factually sufficient to support the award of future 

pain-and-suffering damages to L.G. 

f. Issue Seven: Sayles’s Property-Damage and Loss-of-Use 

Damages 

The trial judge awarded $34,609.56 for Sayles’s “property damage” and 

$15,000 for Sayles’s “loss of use of her vehicle” from the date of the accident to the 

date of judgment. Appellants contend that these awards are supported by insufficient 
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evidence. Specifically, they argue that the only evidence supporting these awards is 

conclusory and thus nonprobative. Appellees respond that the evidence is sufficient 

to support the awards. 

In a tort case for damaged personal property, the default rule for measuring 

direct damages is the difference in the property’s value before and after the injury at 

the place where the damage was occasioned. J&D Towing, LLC v. Am. Alt. Ins. 

Corp., 478 S.W.3d 649, 656 (Tex. 2016). If it would be economical and reasonable 

to repair the property, the property’s owner may instead recover the reasonable cost 

of the replacements and repairs necessary to restore the damaged property to its 

condition immediately before the accident. Id. Either way, the owner may also 

recover “loss-of-use damages, such as the pecuniary loss of the use of an automobile 

damaged in a collision.” Id. (internal quotation and footnote omitted). 

We see no evidence of the market value of Sayles’s vehicle immediately 

before and after the accident. Rather, the trial judge’s award of $34,609.56 for 

“property damage” seems to represent the cost to repair Sayles’s vehicle. The 

supporting evidence consists of affidavit testimony and a repair estimate. 

Specifically, Sayles’s affidavit recites, “As a result of the collision on December 20, 

2022 [sic], Lillie Annette Sayles incurred a Property Damage Estimate in the amount 

of $34,609.56. Please see Exhibit O.”1

 Exhibit O to Sayles’s affidavit appears to be 

1

 In their brief, appellants assert that the property-damage awards “are not based upon any evidence 

contained in any affidavit.” But Sayles’s affidavit provides at least facial support for the awards. 
 –27– 

a repair estimate by a body shop in Midlothian, Texas, for certain work on a 2017 

GMC 1500 Sierra Denali. The exhibit includes a five-page list of parts to be replaced 

or refinished, estimates of the labor that would be needed, and a concluding “Net 

Estimate Total” of $34,609.56. Appellants point out that the exhibit is not sworn, 

which we take to mean that no one swore that the estimate was a true and correct 

copy of what it appeared to be. 

We agree with appellants that there is no probative evidence of the proper 

measure of repair-cost damages. Sayles’s affidavit states only that she “incurred a 

Property Damage Estimate in the amount of $34,609.56.” It does not state that this 

figure is the reasonable cost of the replacements and repairs necessary to restore the 

vehicle to its condition immediately before the accident. Thus, the affidavit alone is 

no evidence of the proper measure of repair damages. See Exec. Taxi/Golden Cab v. 

Abdelillah, No. 05-03-01451-CV, 2004 WL 1663980, at *1–2 (Tex. App.—Dallas 

July 19, 2004, pet. denied) (mem. op.) (holding that plaintiff’s testimony about 

estimated cost to repair damaged car was no evidence of the reasonableness of the 

estimated repair cost). Appellees argue that a property owner is generally deemed 

competent to testify to the value of her own property, but that rule is inapposite; the 

question in this case is the reasonable cost of necessary repairs, not the value of the 

vehicle itself. 

Nor is the unauthenticated repair estimate probative evidence of the proper 

measure of repair damages. The document is principally a long list of parts and their 
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prices, followed by a short list of estimated time and expense for labor, an additional 

cost for “Paint Materials,” and taxes. The document contains no explanation why the 

particular repairs are necessary and no averment that the listed charges are 

reasonable. Moreover, the document recites that it was created in March 2022—over 

a year after the accident—and it contains no proof that the listed repairs are needed 

because of December 2020 accident rather than some other cause. Given these 

deficiencies, we conclude that the estimate is no evidence of the reasonable cause of 

necessary repairs to Sayles’s vehicle caused by the accident in question. See id. at 

*1 (“[A]n estimate without the testimony of the person who made the estimate or 

other expert testimony is no evidence of the necessity of the repair or the 

reasonableness of the cost of the repair.”). 

The evidence supporting the $15,000 loss-of-use award is even scantier. It 

consists of this statement in Sayles’s affidavit: “Plaintiff is also requesting 

$15,000.00 for loss of use of the vehic[]le from December 20, 2020 to [the] present 

[i.e., April 11, 2023].” This statement is no evidence that $15,000 in any way 

represents the pecuniary value of a reasonable period of lost use of the vehicle. See

J&D Towing, LLC, 478 S.W.3d at 655–56 (“By design, loss-of-use damages 

compensate a property owner for damages that result from a reasonable period of 

lost use of the personal property.”) (internal quotation and footnote omitted); id. at 

677 (loss-of-use damages must not be speculative and must be supported by 

evidence rising above the level of pure conjecture). Appellees again refer to the 
 –29– 

property-owner rule, but again the rule is inapposite. Sayles may be competent to 

testify about the vehicle’s value, but she simply offers no basis for concluding that 

$15,000 is a reasonable amount to compensate her for loss of the vehicle’s use for a 

reasonable time. Appellees also suggest that appellants have failed to show any 

harm, but the harm flowing from a damages award that is unsupported by the 

evidence is manifest. 

In sum, we hold that the awards of damage for property damage and loss of 

use are supported by legally insufficient evidence. 

5. Conclusion and Appropriate Relief 

We overrule appellants’ fourth, fifth, and sixth issues on appeal. We sustain 

appellants’ seventh issue on appeal. 

When an appellate court sustains a legal-sufficiency challenge to findings 

made after a no-answer or a post-answer default judgment, the proper remedy is 

reversal and remand for a new trial. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 

922, 929–30 (Tex. 2009) (per curiam). Because Sayles’s damages for the damage to 

her vehicle are unliquidated, we may not order a new trial as to damages alone. See

TEX. R. APP. P. 44.1(b). 

Finally, we note that the judgment contains a single prejudgment interest 

award based on the total amount of damages recovered by both appellees. Because 

we are reversing the judgment in part, we also reverse the award of prejudgment 

interest and remand for recalculation upon final judgment. 
 –30– 

IV. DISPOSITION

We reverse the judgment to the extent it awards appellee Lillie Sayles 

$34,609.56 for “property damage” and $15,000 for “loss of use of her vehicle from 

December 20, 2020 to present.” We also reverse the judgment’s award of 

prejudgment interest. We remand the case for a new trial as to both liability and 

damages as to appellee Lillie Sayles’s claims for losses arising from the physical 

damage her vehicle sustained in the accident in question, and for recalculation of 

prejudgment interest. We affirm the judgment in all other respects. 

230765F.P05 

 

/Dennise Garcia/ 

DENNISE GARCIA 

JUSTICE 
 –31– 

S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

ALEXANDER FERNANDEZ AND 

VERONICA GUERRERO 

GUTIERREZ, Appellants 

No. 05-23-00765-CV V. 

OMARI DUNLAP AND LILLIE 

SAYLES (A/N/F MINOR L.G.), 

Appellees 

 On Appeal from the 160th Judicial 

District Court, Dallas County, Texas 

Trial Court Cause No. DC-21-10756. 

Opinion delivered by Justice Garcia. 

Justices Breedlove and Kennedy 

participating. 

 In accordance with this Court’s opinion of this date, the judgment of the trial 

court is AFFIRMED in part and REVERSED in part. We REVERSE the 

portions of the trial court’s judgment that award appellee Lillie Sayles $34,609.56 

for “property damage” and $15,000 for “loss of use of her vehicle from December 

20, 2020 to present.” We also REVERSE the judgment’s award of prejudgment 

interest. In all other respects, the trial court’s judgment is AFFIRMED. 

 We REMAND this case to the trial court for a new trial on appellee Lillie 

Sayles’s claims for losses arising from physical damage to her vehicle and for 

recalculation of prejudgment interest. 

 It is ORDERED that each party bear his or her own costs of this appeal. 

Judgment entered this 28th day of August 2024.