COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

IN RE: RUDOLPH AUTOMOTIVE, 

LLC D/B/A RUDOLPH MAZDA and

RUDOLPH CHEVROLET, LLC,

 Relators.

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No. 08-18-00149-CV

AN ORIGINAL PROCEEDING

IN MANDAMUS

DISSENTING OPINION

Who loses when a trial court grants a motion for new trial after a three-week trial? Well, 

the party that prevailed, or partially prevailed certainly does. But so do the twelve jurors who took 

three weeks out of their life to hear and decide an important dispute. Other litigants that could 

have used that three weeks to have their cases heard are also the losers, as they missed the 

opportunity to utilize valuable court time. And whenever the case is reset, another twelve jurors 

(plus alternates) will have to put their lives on hold for three weeks to possibly decide a gutwrenching case. Moreover, another set of litigants will have to sit on the sidelines waiting their 

turn to try a case. We could add to the list of losers the third-party witnesses who may have to 

testify again, and of course the taxpayers who foot the bill for the court staff and facilities.
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In sum, the cost to society is tangible, and accordingly, our Supreme Court has laid out a 

framework for review whenever a trial court exercises its discretion to grant a new trial. In my 

opinion, under that framework the relators successfully challenge each of the four grounds 

advanced by the trial judge to set aside the three-week trial in this case. Accordingly, I respectfully 

dissent. 

The Court correctly sets out a statement of the case and the standards for mandamus relief.

In summary, the trial court’s stated reason must be (1) legally appropriate and (2) specific enough 

to show that the trial court derived its reasons from the facts and circumstances of the case before 

it. In re United Scaffolding, Inc., 377 S.W.3d 685, 688-89 (Tex. 2012). And if the stated reasons 

are appropriate, we are directed to also determine whether the trial court’s articulated reasons find 

support in the underlying record. In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 756 

(Tex. 2013). In this case, the trial court granted a new trial based on (1) an apparent conflict in 

the jury findings, (2) its purported reliance on one of our decisions that was later overturned, (3) 

an expert who violated a motion in limine, and (4) alleged inconsistency between the damages 

evidence and the damages findings. I address each in turn.

Conflict in Jury Findings

The jury failed to find that Rudolph was negligent in Question Two and Three, but contrary 

to a conditioning instruction, assigned it a percentage of responsibility (10%) in Question Four. I 

agree with Rudolph that any conflict between the answers to those questions was waived when the 

issue was not raised before the trial court discharged the jury, and that in any event, the problem 

has a simple mathematical fix.

If a trial court intends to grant a new trial based on error occurring during trial, the error 

must have been the kind that would be reversible if appealed. That was the case in In re Toyota, 
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where the trial court granted a new trial because it thought Toyota violated a limine order excluding 

certain testimony. In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 749 (Tex. 2013) (orig. 

proceeding). Yet the Texas Supreme Court held that the record did not support the trial court’s 

new trial order because the plaintiffs had not preserved the complaint at trial. Id. at 760 (“where, 

as here, the party that requested the limine order itself introduces the evidence into the record, and 

then fails to immediately object, ask for a curative or limiting instruction or, alternatively, move 

for mistrial, the party waives any subsequent alleged error on the point.”). And here, no party 

objected that there was a conflict in the jury findings before the jury was discharged.

The majority blunts this point by holding that a post-trial motion can also preserve error, 

citing a plurality from USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479 (Tex. 2018). In 

Menchaca, four Justices agreed that a party should object to conflicting answers before the trial 

court dismisses the jury, but they went on to write that “[t]he absence of such an objection, 

however, should not prohibit us from reaching the issue of irreconcilable conflicts in jury 

findings.” Id. at 526 (C.J. Hecht, J. Green, J. Guzman, and J. Brown, dissenting). Three Justices, 

however, opined that irreconcilable jury responses do not constitute fundamental error, and 

concluded that an objection was required prior to the jury’s discharge. Id. at 510–20 (J. Boyd, J. 

Lehrmann, and J. Devine, plurality op.). Nonetheless, those same three Justices agreed that the 

case should be remanded for a new trial in the interest of justice, a power unique to the Texas 

Supreme Court, because of prior confusion in the error preservation requirements for irreconcilable 

jury responses. Id. at 520-21; see also TEX.R.APP.P. 60.3 (authorizing Texas Supreme Court to 

remand in interest of justice).

I would hew to the basic proposition that any error in conflicting jury findings needs to be 

raised while the jury is still present to resolve the conflict, and that post-trial motions do not 
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preserve error. See Critical Path Resources, Inc. v. Huntsman Intl., LLC, No. 09-17-00497-CV, 

2020 WL 1291327, at *17 n.66 (Tex.App.--Beaumont Mar. 19, 2020, no pet.) (mem. op.) (holding 

under Menchaca that a post-verdict motion failed to preserve right to complain about any alleged 

conflict in jury findings). That is how Rule 295 reads. See TEX.R.CIV.P. 295 (if the “answers to 

the [jury] questions are in conflict, the court shall in writing instruct the jury in open court of the 

nature of the incompleteness, unresponsiveness, or conflict, provide the jury such additional 

instructions as may be proper, and retire the jury for further deliberations.”). That is closest to our 

prior precedent. Rhey v. Redic, 408 S.W.3d 440, 464 (Tex.App.--El Paso 2013, no pet.). And that 

is in accord with the requirement for a “timely” objection which is an express requirement of Rule 

33.1. TEX.R.APP.P. 33.1 (prerequisite for appeal requires a “a timely request, objection, or 

motion”). By raising the issue in a motion for new trial, the real-parties-in-interest leave the trial 

judge with only one remedy—declare the entire trial a nullity and start anew. Following Rule 295, 

however, would have at least provided the opportunity to fix any conflict between Question 2, 3,

and 4. Borrowing from our criminal jurisprudence, the key to error preservation is for a litigant 

“to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly 

enough for the judge to understand him at a time when the trial court is in a proper position to do 

something about it.” Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App. 1992) (emphasis 

supplied). The difference in possible remedies makes preservation through a motion for new trial 

a poor cousin to fixing the problem while the jury is still in the box. For that reason, I decline to 

join the majority approach of allowing for post-jury-discharge objections to conflicting findings.

But even beyond that preservation issue, I disagree that the conflict here is fatal and cannot 

be harmonized. This is not the first time that a jury has answered the negligence inquiry “no” but 

assigned a percentage of fault to the same party. See Beltran v. Brookshire Grocery Co., 358 
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S.W.3d 263, 269 (Tex.App.--Dallas 2011, pet. denied) (collecting cases). And courts facing that 

predicament have concluded that “[i]ssues establishing or negating liability control over the issue 

which apportions, rather than establishes, negligence.” Id.; see also Garza v. Waco Scaffold and 

Shoring Co., 576 S.W.2d 442, 446 (Tex.App.--El Paso 1978, writ ref’d n.r.e.) (“the specific finding 

directed toward the liability aspect of the verdict controls over the general finding of comparative 

negligence”). And when faced with that prospect here, the trial court could still formulate a verdict 

by proportionally distributing the erroneous 10% finding over the three remaining percentages of 

responsibility. See Garza, 576 S.W.2d at 446; Beltran, 358 S.W.3d at 269; Ingles v. Cohen, 543 

S.W.2d 455, 456–57 (Tex.App.--Waco 1976, writ ref’d n.r.e.). The real-parties-in-interest 

discount these cases because they predate broad form submission. But whether a jury answered a 

series of specific negligence questions “no” or one broad form question “no,” and then answered 

an apportionment question inconsistently seems a distinction without a difference.

The Painter Decision

The trial court also based its new trial motion on the change in law when our decision in 

Painter v. Amerimex was overturned by the Texas Supreme Court just as the trial ended. Painter 

v. Amerimex Drilling I, Ltd., 511 S.W.3d 700 (Tex.App.--El Paso 2015), rev’d, 561 S.W.3d 125 

(Tex. 2018). In Painter, the crew leader of an oil drilling rig drove his crew from a remote drilling 

site to company housing in a nearby town. The crew leader was in his personal vehicle and work 

had finished for the day. While en route, he collided with another vehicle and the resulting accident

killed and injured several crew members. The victims sued the crew leader and his employer. 

The employer obtained a summary judgment based on the argument that the employer 

could not be vicariously liable for the crew leader’s conduct unless the employer controlled his 

actions at the time of the accident. Id. at 709. Attempting to reconcile conflicting authority on 
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that issue, we agreed with the trial court and upheld the summary judgment. 511 S.W.3d at 710-

11, citing, e.g., London v. Texas Power & Light Co. 620 S.W.2d 718, 719-20 (Tex.App.--Dallas 

1981, no writ) (“The test of a master’s liability for the negligent acts of his servant is whether at 

the time and occasion in question, the master has the right and power to direct and control the 

servant in the performance of the causal act or omission at the very instance of its occurrence.”)

(emphasis supplied) and J & C Drilling Co. v. Salaiz, 866 S.W.2d 632, 636 (Tex.App.--San 

Antonio 1993, no pet.) (“When the employer does not require any particular route, the employee 

is not engaged in the furtherance of the employer’s business.”).

The Texas Supreme Court disagreed with this Court, and some of the cases we relied on, 

instead holding that the relevant inquiry to impose vicarious liability was whether at the time of 

the negligent conduct, “the worker (1) was an employee and (2) was acting in the course and scope 

of his employment.” Painter II, 561 S.W.3d at 131, 132. The element of control is bound up in 

the first question—employment status—and not the course and scope question. Id. at 132

(“Accordingly, we disagree with those courts of appeals that have tied the right-to-control analysis 

to the course-and-scope element of a vicarious-liability claim.”). Moreover, that control should 

not be evaluated on a task-by-task basis. Id. at 138. And the course and scope question “hinges 

on an objective assessment of whether the employee was doing his job when he committed a 

tortious act. . . . The employer’s right to control the work, having already been determined in 

establishing the employer-employee relationship, is not part of this analysis.” Id. at 132-33. The 

Supreme Court remanded the case because the summary judgment record revealed factual disputes 

over whether the crew leader was in the course and scope of his employment by driving the crew 

to its housing. Id. at 139.

In this case, the trial court granted a new trial here in part because:
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[T]he Texas Supreme Court decision in Painter v. Ameritex [sic] rendered on April 

213,2018, [sic] the day of this Jury Verdict, was important law that affected the 

earlier decision s [sic] of this Court on motions filed by the parties, the evidence 

presented at trial and the charge given to the Jury. Based on the Painter opinion 

and other relevant decisions and authority as set forth in Plaintiff s Motion for 

Judgment NOV, it appears to this Court that it needs to reconsider whether Irma 

Vanessa Villegas and Christian Ruiz were injured in the course of employment as 

a matter of law which would make Plaintiff s claim a non-subscriber negligence

case under 406.33 [sic] of the Texas Labor Code, and combined with the evidence 

admitted at trial, find negligence as a matter of law, thereby leaving only the issue 

of damages for determination.

I agree with Rudolph that the trial court’s claim that Painter affected its earlier decisions 

on (1) pending motions, (2) the evidence presented at trial, and (3) the jury charge is either 

conclusory or is not supported by the record. The only motions that the parties point to were 

competing motions for summary judgment on the course and scope issue. Rudolph argued for a 

summary judgment in part based on our Painter decision (before it was reversed) but the trial court 

denied that motion. The trial court also denied the real-parties-in-interest’s motion for summary 

judgment, but I fail to see how Painter II would have changed that ruling. In Painter II, after all, 

the court remanded the case for trial based on the existence of a fact issue. Consistent with that 

outcome, the trial court also submitted a course and scope question to the jury.

The majority’s elongated discussion of Painter fails to point to a single evidentiary ruling, 

or other trial ruling colored by Painter I. Nor have the parties identified any defect in the charge 

occasioned by the trial court’s reliance on Painter I. The accident at issue in Painter occurred well 

away from the worksite, and parties there argued the “coming and going” rule and cases applying 

that rule. 511 S.W.3d at 706.1 The accident here occurred in Rudolph’s parking lot. And the 

parties disputed whether the “access doctrine” which is an exception to the coming and going rule 

1 And a careful examination of the briefing when the case was before our Court would show that the plaintiffs primarily 

relied on a claimed exception to the coming and going rule carved out for travel to and from drilling rigs in remote 

locations. 511 S.W.2d at 706, citing, e.g., Johnson v. Pacific Employers Indemnity Co., 439 S.W.2d 824 (Tex.1969). 

None of those cases, however, would have any application to the accident here.
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would apply. That doctrine allows employees to recover workers’ compensation benefits if they 

are “injured while going to or from work, if on routes designated by their employers and at 

locations near where they work, . . . ‘where such access route or area is so closely related to the 

employer’s premises as to be fairly treated as a part of the premises.’” OCI Beaumont LLC v. 

Barajas, 520 S.W.3d 83, 85 n.1 (Tex.App.--Beaumont 2017, no pet.), quoting Tex. Comp. Ins. Co. 

v. Matthews, 519 S.W.2d 630, 631 (Tex. 1974). Moreover, the trial court actually included—at 

the real-parties-in interest’s request—an access doctrine instruction in the charge. Neither the trial 

court, nor the real-parties-in-interest articulate any additional or different charge language that 

would have been included had Painter II been released before, rather than after trial.

At most, the trial court states it might conclude that Irma Vanessa Villegas and Christian 

Ruiz were in the course and scope of employment as a matter of law based on the Texas Supreme 

Court’s decision in Painter. Setting aside whether that is even correct, nothing would have 

prevented the trial court from granting that relief post-trial based on the arguments and relief 

sought in “Plaintiff’s Motion for Judgment Notwithstanding the Verdict and to Enter Judgment.” 

Our rules specifically allow a party to file motion for judgment notwithstanding the verdict, which 

the real-parties-in-interest did here. TEX.R.CIV.P. 301. But rather than grant that motion, the trial 

court set aside the results of a three-week jury trial because it might grant a JNOV or equivalent

motion in the future. I would find that to be an abuse of discretion. If the trial court believes the 

law places certain of these actors in the course and scope of employment as a matter of law, the 

court should simply grant the JNOV and let that ruling be tested on appeal.

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2 Nothing written here should be interpreted as suggesting that I would agree or disagree with such a ruling. That 

issue is not before us. I only conclude that a trial court cannot set aside a jury’s verdict in favor of a new trial because 

the court might grant one party relief as a matter of law, particularly when a motion seeking such relief is already teed 

up before the trial court.
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The Expert’s Testimony

As one of the last trial witnesses, Rudolph put on an expert toxicologist, Dr. Gary Wimbish, 

to opine in part that the alcohol that Ruiz drank would not have affected him on the night of the 

accident. Ruiz had a blood alcohol content of .02. Ms. Villegas had a BAC of .04. As the majority 

sets out, when Wimbish was cross-examined by plaintiffs’ counsel, he was asked to agree that all 

the alcohol that Villegas had that day was provided by the Rudolph. He responded that “[m]y 

information is a bit different from that.” Villegas’s counsel then asked him what other information 

he had. He then relayed that Villegas was reported to have imbibed alcohol she brought to work. 

And when Villegas’s counsel continued with that line of questioning—asking where he got that 

information from—Dr. Wimbish gratuitously added that he had seen clinical information that Ms. 

Villegas had a problem with alcohol such that she would wake up in the middle of the night and 

need to drink to get back to sleep. At that point, Villegas’s counsel asked to approach the bench 

and moved for a mistrial. The trial court denied the mistrial (noting that Villegas had opened the 

door) but then formulated this specific instruction that each juror individually had to agree that 

they would abide by: 

COURT: You heard testimony from the witness that is not credible, is unreliable, 

and not evidence in this case. You are instructed to disregard the witness’s 

testimony – Dr. Wimbish’s testimony – on all evidence concerning Vanessa 

Villegas’ prior use of alcohol before the date in incident – before this incident.

Do you understand that, ladies and gentlemen?

THE JURORS: Yes, sir.

I could certainly agree that the injection of some of the drinking testimony was error. The 

specific reference to a drinking problem and that Villegas needed to drink to go to sleep was not 

responsive to the question asked. The bench conference also suggests that the information was 

based on double, if not triple hearsay. The injection of these matters, accordingly, could be a valid 
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ground for ordering a new trial.

But for an error to serve as a valid basis for a new trial, it must be harmful which we define 

as probably causing the rendition of an improper verdict. TEX.R.APP.P. 44.1(a); Diamond

Offshore Servs. v. Williams, 542 S.W.3d 539, 551 (Tex. 2018); Loera v. Fuentes, 511 S.W.3d 761, 

776 (Tex.App.--El Paso 2016, no pet.). And that is where I get stumped. The trial court pointedly 

told the jury that the evidence was unreliable; each juror individually agreed to abide by that 

instruction. We generally presume that jurors will follow a court’s instructions, and only a narrow 

class of statements defy our ability to instruct jurors. See Living Centers of Texas, Inc. v. Penalver, 

256 S.W.3d 678, 680 (Tex. 2008) (“Typically, retraction of the argument or instruction from the 

court can cure any probable harm, but in rare instances the probable harm or prejudice cannot be 

cured.”). Those rare circumstances include appeals to racial prejudice, unsupported and extreme

attacks on opposing parties and witnesses, and accusing without evidence the opposing parties of 

witness manipulation or evidence tampering. Id. at 681 (collecting cases). The statement here 

falls somewhere outside that line of cases. 

Nor does the record support that the jury violated the trial court’s instruction. On liability, 

the jury found Villegas (who had more to drink than Ruiz) slightly less at fault than Ruiz. The 

accident occurred when Ruiz, who had just backed out of a parking spot, put his truck into drive 

and drove into Villegas who was walking in front of his truck. The jury could have concluded that 

both driver and pedestrian failed to keep a proper look-out. Stated otherwise, there is nothing 

surprising about the finding of fault, or the apportionment of liability. Nor does a $3.87 million 

verdict call out that the jury disregarded the damages testimony because of the single isolated 

statement of the witness.
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The Damages Findings

The majority does not reach the fourth basis for the trial court’s order—the amount of noneconomic damages awarded. Because I would find each of the stated reasons for the new trial 

improper, I briefly address the issue.

The jury awarded a total of $4.02 million in damages, $3.87 million to Villegas (who was 

hit by the truck) and $150,000 to Juarez (Villegas’s adult daughter). The jury awarded Villegas 

these specific sums: 

Medical care in the past: $630,000

Medical care in the future: $2,500,000

Physical pain and suffering in the past: $25,000

Physical pain and suffering in the future: $25,000

Physical impairment in the past: $25,000

Physical impairment in the future: $25,000

Past disfigurement: $0

Future disfigurement: $200,000

Loss of past earning capacity: $150,000

Loss of future earning capacity: $240,000

Past mental anguish: $25,000

Future mental anguish: $25,000

The awards for Juarez are as follows:

Past household services: $0

Future household services: $150,000

Past loss of parental consortium: $0
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Future loss of parental consortium: $0

The trial court also granted a new trial based on the jury’s answers to eight of the damage 

categories, stating as follows:

As an additional and independent basis for new trial, the Court finds that the 

determination of Zero (-0-) Damages for past disfigurement of Irma Vanessa 

Villegas . . . as well as Zero (-0-) Damages for daughter Andrea Juarez for Past 

household services and for Past and future loss of parental consortium completely 

ignore the undisputed facts, and the other damages [for past and future physical 

pain and physical impairment] fix an amount neither authorized nor supported by 

the evidence and is contrary to the great weight of the evidence. (Internal reference 

to the damage question numbers omitted).

The trial court further stated, and I accept as true, that the “undisputed evidence proved that Irma 

Vanessa Villegas suffered permanent irreversible traumatic brain injury and was paralyzed on one 

side of her body[.]” The trial court summarized the trial evidence as including “controverted 

evidence of constant daily pain” and her “impairment in virtually every movement.” Villegas was 

confined to a bed and wheelchair, and she needed round-the-clock assistance. She suffered 

“permanent damage to her mental faculties” such that at times she did not know her daughter, her 

grandchildren, and her sisters.

Rule 320 expressly provides that “[n]ew trials may be granted when the damages are 

manifestly too small or too large.” TEX.R.CIV.P. 320. And our high court has stated “If the jury’s 

failure to award damages or the amount of damages awarded is so against the great weight and 

preponderance of the evidence as to be manifestly unjust, shock the conscious, or clearly 

demonstrate bias, then a new trial would be required.” Golden Eagle Archery, Inc. v. Jackson, 116 

S.W.3d 757, 773 (Tex. 2003).

But any view of damages is also tempered by the jury’s wide discretion in awarding noneconomic damages. Sanchez v. Balderrama, 546 S.W.3d 230, 237 (Tex.App.--El Paso 2017, no 

pet.) (“Because there are no objective guidelines to assess the monetary equivalent to [mental 
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anguish or pain and suffering], the jury is given broad discretion in awarding an amount of 

damages it determines appropriate.”). This is because the “process of awarding damages for 

amorphous, discretionary injuries such as mental anguish or pain and suffering is inherently 

difficult because the alleged injury is a subjective, unliquidated, nonpecuniary loss.” Id. We 

recently quoted a prior sister court’s view that it is the jury’s province “to resolve the speculative 

matters of pain and suffering, future pain and suffering, future disfigurement, and future physical 

impairment, and set the amount of damages attributable thereto.” Id., quoting Duron v. Merritt, 

846 S.W.2d 23, 26 (Tex.App.--Corpus Christi 1992, no writ).

We also must acknowledge the possible overlap between the damage categories here--

physical impairment, physical pain and suffering, disfigurement, and pain and mental anguish. 

See Golden Eagle Archery, Inc., 116 S.W.3d at 771 (noting that physical impairment, physical 

pain and suffering, disfigurement, and mental anguish can encompass the same loss). None of 

these terms were defined by the charge. So, while we assume the jury followed the instruction not 

to award the same damages in more than one damage category, we must look to all the awards in 

the several categories to determine if the jury failed to properly award damages. Id.

The trial court here first focused on the failure of the jury to award any sum for past 

disfigurement (while awarding a substantial sum for future disfigurement). The accident resulted 

in a portion of Villegas’s skull being removed, leaving an indentation on her forehead and other 

scarring from one side of her skull to the other. There was some testimony that she bemoaned the 

misshapenness of her head and was given to frequent crying. “Disfigurement has been defined as 

that which impairs the appearance of a person, or that which renders unsightly, misshapen or 

imperfect, or deforms in some manner.” Doctor v. Pardue, 186 S.W.3d 4, 18 (Tex.App.--Houston 

[1st Dist.] 2006, pet. denied). “The matter of future disfigurement is necessarily speculative and 
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there is no mathematical yard stick by which one can measure damages for it.” Mauricio v. 

Cervantes, No. 04-16-00260-CV, 2017 WL 2791324, at *3 (Tex.App.--San Antonio June 28, 

2017, no pet.) (mem. op.).

Rudolph postulates that the jury awarded nothing in the past for disfigurement because 

Villegas as of the time of trial did not perceive her own change in appearance. It suggests that the 

large future disfigurement award evidences the jury’s belief she would later improve and come to 

learn of her disfigurement, and only then suffer the loss.3I am unpersuaded by that specific 

argument. But I agree that the compensable aspect of disfigurement is how it affected Villegas, 

which surely encompasses her mental suffering from the injury. It could also encompass the loss 

of enjoyment of life that is part and parcel of physical impairment. See Golden Eagle Archery, 

Inc., 116 S.W.3d at 772. That overlap necessitates that a court also consider any awards for mental 

anguish, pain and suffering, and physical impairment in deciding if the jury truly ignored the 

disfigurement. And the jury did collectively award $75,000 in those categories to Villegas. 

Accordingly, it is incorrect to conclude the jury failed to consider at all the disfigurement in its 

damage calculations.4

The trial court also focused on the lack of awards for loss of parental consortium. The 

relationship here was between an adult child and parent. Juarez presented testimony of her belief 

as to the destruction of that relationship. Relators point out, however, that her credibility was 

challenged through cross examination on at least two matters where the jury might have concluded 

that Juarez was untruthful or prone to embellishment. It of course is not our role to decide whether 

3 Tragically, during the pendency of this appeal, the real-parties-in-interest informed us that Villegas has passed away.

4 This overlap also distinguishes the principal case that the real-parties-in-interest rely on, Doctor v. Pardue. In that 

case, the jury awarded no sums for any of the past categories of non-pecuniary loss, but substantial sums for all the 

future awards. 186 S.W.3d at 18.
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she was truthful or not—that is reserved for the jury. Benoit v. Wilson, 239 S.W.2d 792, 796 (Tex. 

1951) (“The jury, not the court, is the fact finding body. The court is never permitted to substitute 

its findings and conclusions for that of the jury. The jury is the exclusive judge of the facts proved, 

the credibility of the witnesses and the weight to be given to their testimony.”). Accordingly, the 

jury was entitled to disbelieve her testimony and not award consortium damages. Perez v. Lopez, 

74 S.W.3d 60, 66 (Tex.App.--El Paso 2002, no pet.) (in upholding award of no damages for loss 

of consortium “it was [the jury’s] function to accept or reject any, part, or all of the witnesses’s

testimony . . . .”).

The trial court also found fault with the jury’s answer to the loss of household services 

question. An award for household services compensates a family member for the loss of household 

services that the injured party would have provided the family member but for the injury. See

COMM. ON PATTERN JURY CHARGES, STATE BAR OF TEX., TEXAS PATTERN JURY CHARGES: GEN.

NEGLIGENCE, PJC 28.4 (2016). The jury question here, however asked for the “[r]easonable value 

of household services and personal care in the past provided by Andrea Juarez for the benefit of 

Irma Vanessa Villegas.” There was no evidence that Juarez provided household services to 

Villegas (as opposed to Villegas providing services to Juarez). While that may have been a 

typographical error as the real-parties-in-interest suggest, it was the charge given and which the 

jury answered.

The balance of the trial court’s rationale is that the series of $25,000 awards for past and 

future physical impairment, and past and future pain and suffering are “neither authorized nor

supported by the evidence and is contrary to the great weight of the evidence.” It is unclear if the 

rationale here is grounded solely in a factual sufficiency challenge or includes legal sufficiency as 

well. See In re Bent, 487 S.W.3d 170, 179 (Tex. 2016) (noting trial court’s muddled legal- and 
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factual-sufficiency evaluation of the evidence). As a legal insufficiency matter, the argument fails 

because the evidence could never establish a particular sum for a non-pecuniary award as a matter 

of law. As a factual insufficiency challenge, the order fails to explain how the particular 

amounts—given the jury’s wide latitude, shock the conscious or point to an award based on some 

bias.

For these reasons, I respectfully dissent.

JEFF ALLEY, Chief Justice

December 30, 2020

Before Alley, C.J., Rodriguez, and Palafox, JJ.