### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-15-00242- CV

Guillerm o Ochoa-Cronfel, Appellan t

v. P atric k C. Murray, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 345 TH JUDICI AL DISTRICT NO. D-1 -GN-1 1-0 0213 6, H ONO RAB LE AMY CLARK MEACH UM, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N

Gui llermo Ochoa -Cronfe l appea ls from the trial court’s judgme nt awa rding hi m damag es for persona l injuries he sustai n ed af t er the bicy cle he was riding collided with Patrick Murra y ’s dog

. I n ten issues Cronfel ch al l en ges the leg al and fac tual sufficie ncy of the evidenc e supporting the jury ’s liability and damag es finding s. I n one issue, Cronfel also challeng es the trial court’s order that Cronfel pay Murra y ’s attorney s $5,000 as sanctions for h i s conduct during the

course of discover

y . We will affirm.

BACK GR OUND I n Ju ly 2 0 0 9 , Cr o n f

e l w a s r id in g h is b ic y

c le o n a r e s id e n ti a l s tr e e t in h is n e ig h b o r h o o d

. Murra y was walking his dog , M agn u m , on the same street. Murra y testified that afte r Mag num relieve d himself on a lawn sever al fee t from the street, he place d Mag num’s leash under his foot to

secur e him while he picked up the dog ’s waste. Mag num broke fre e and ran into the street, collidingwith the front tire of Cronfel’s bicy cle. Cronfel was thrown from the bicy cle and broke his fall with

his rig ht arm, which was injured as a result. Cronfel sued Murra y for damag es arising from his persona l injury cause d by the fall. After a three -day trial, a jury found t h at b o t h Murra y ’s and Cronfel’s neg l i gence proxi mately cause d the injury and allocate d 55% of the responsibility to Murra y and 45% of the responsibility to Cronfel. The jury further found that the following amounts would rea sonably compensa te C ronfe l for his injuries resulting from the fall: (1 ) $12,345 for past and future medical expenses; (2) $3,500 for past and future phy sical pai n and mental ang uish; and (3) $2,500 for past and future phy sical impairment. The jury awa rded zero damag es for past and f u tu r e d is f ig u r e me n t. T h e tr ia l c o u

r t r e n d e r e d ju d g me n t o n th e v e r d ic t, a w a r d in g Cr o n f

e l $ 1 0 , 0 8 9

. 7 5 ,
an amount equaling the total of 55% of eac h damag e element the jury had awa rded. See Tex. Civ. Prac. Rem. Code § 33.012( a).

I n this appea l, Cronfel arg ues that (1) the evidenc e is leg ally and fac tually insufficient
to support the jury ’s finding s that his neg lige nce was a proxi m at e cause of the injury and (2) the eviden ce is leg ally and factually insufficient to support the amount the j ury awa rded him for each

e le me n t o f d a

ma g e s in c lu d e d in th e c h a

r g e . Cr o n f

e l a ls o a r g u e s th a t th e tr ia l c o u r t a b u s e d it s d is c r e ti o n by order ing Cronf

el to pay $5,000 as sanc tions.

STANDARD OF REVIEW To deter mine whether leg ally sufficie nt evidenc e supports a challeng ed finding , we must cre dit evidenc e favor able t o the finding if a rea sonable fac tfinder could, disreg ard contra ry evidenc e unless a reasonable fac tfinder could not, and reverse the fa ct fi n d er ’s deter mination only if the evidenc e prese nted at trial would not enable a rea sonable and fair- minded fac tfinder to rea ch

2the j udg ment under r eview. City of Keller v. W ilson , 168 S.W .3d 802, 827 (Tex. 2005). We will sustain a lega l sufficie ncy challeng e if the r ecor d reve als: (1) the c omplete abse nce of evidenc e of

a vital fac t; (2) that the court is barr ed by rules of law or of evidenc e from g iving weig ht to the only evidenc e off

ere d to prove a

vital fac t; (3) that the evidence offe red to prove a vital fa ct is no more than a mere scintilla; or (4) that the evidenc e establishes conclusively the opposite of the vital fac t. Id. at 810. When the evidenc e offe red to pr ove a vital f act is so wea k as to do no more than cre ate

a mere surmise or suspicion, the evidenc e is less than a scintilla and, in leg al eff ect, is no evidenc e. See Ford Motor Co. v. Ridgway , 135 S.W .3d 598, 601 (Tex. 2004). More than a scintilla of evidenc e exis ts if the evidenc e rises to a level that would enable rea sonable and fair- minded people to differ in their conc lusions. Id. I n revie wing a fac tual-suffic iency challeng e, we examine the en t i re rec ord and consider and weig h all the evidenc e, both in support o f an d contra ry to the challeng ed finding

. Ortiz v. Jo n es , 917 S.W .2d 770, 772 (Tex. 1996). When a party attacks the fac tual sufficie ncy of an adve rse f

inding on a

n issue on which it had the bur den of proof, i t must demonstrate on a ppeal that the adver se finding is ag ainst the g rea t we i gh t and preponde ranc e of the evidenc e. Urista v. Bed, Bath & Bey on d

, Inc. , 245 S.W .3d 591, 601 (Tex. App.—Houston [1st Dist.] 2007, no pet.). When a party attacks the fac tual suffi ci ency of an adver se finding on which it does not have the burden of proof, we set aside the finding only if the evidenc e is so wea k as to m ak e the finding clea rly wrong and manife stly

unjust. Cain v. Bain , 709 S.W .2d 175, 176 (Tex. 1986). J urors are the sole judge s of t he credibility of t he witnesses an d t h e we i gh t to g ive their testimony

. City of K el l er , 1 6 8 S

. W

. 3 d at 819. When there is conflicting evidenc e, it is the

3province of the jury to resolve such conflicts. Id. at 820. I f conflicting infere nces can be draw n from

the evidenc e, we assume jurors made all infere nces in favor of their verdic t if rea sonable minds could, and disreg ard all other infere nces. Id. at 821. I f the evidenc e allows only one infere nce, we may not disreg ard it. See id. I f the evidenc e falls within a zone of rea sonable disag ree ment, we may not substit ute our judg ment for that of the fa ctfinder

. See id. at 822. Finally , when an issue of m ater ial fac t is su b mitted to a jury , the s ufficie ncy of t he evidenc e is measure d by the questions and instructions in the char g e. See Regal Fin. Co. v. Tex Star Motors, Inc. , 355 S.W .3d 595, 601 (Tex. 2010) (noting that evidentiar y sufficie ncy must be

measure d ag ainst jury char g e); Romero v. KPH Consol., Inc. , 166 S.W .3d 212, 221 (Tex. 2005); City of Fort W

orth v. Zimlich , 29 S.W .3d 62, 71 (Tex. 2000) (obser ving that court bound to revie w evidenc e in light of

instruction submit ted to jury without objection).

Cont ribut ory Ne gligence Findin g I n Question No. 1, the jury was a sked, as to both Cronfel and Murra y , whether that person’ s neg lige nce, if any , proxi mately cause d “the injury in que stion? ” Predica ted on a finding 1 that both Cronfel’s and Murra y ’s neg lige nce had proxi mately cause d the “injury in question,” Question No. 2 asked the jury to allocate the perc entag e of the t o t al (1 0 0 %) neg lige nce causing the “injury ” that it found t o b e at t ributable to Cronfel and to Murra y respe ctively

. I n his first two

The char g e does not define “the injury in question.” At trial Cronfel elicited testimony 1 from his trea ting phy sician about two separ ate injuries he allege dly suffe red as a result of t he fall, eac h requirin g d iffer ent trea tment: (1) a fra cture d radius that led to “ulnar impaction sy ndrome” requiring surg ery to shorten the ulna, and (2) a scapholuna te ligament tear that led to arthritis in the bones of the w rist requiring surg ery to perfor m a four point bone f

usion. 4i s sues, Cronfel contends that there is leg ally and fac tually insufficient evidenc e to s u p p o rt t h e

jury ’s finding that he wa s neg lige nt and that Murra y was not 100% r esponsible for the injury

. 2 At trial Cronfel testified about the circ umstances leading to his fall. Cronfel testified that he was cy cling throug h a residential neig hborhood wher e he was awa re people routinely walked, biked, and other

wise enjoy ed the outdoors. Acc ording to Cronfel, he w as “r amping up” his speed to g et in a g ood workout. Cronfel stated that he cy cled toward the middle of the street sever al fee t

awa y from parke d car s so he would not be hit if someone opened a car door. Cronfel testified that he was focuse d on h i s wo rk o u t an d did not see Murra y or his dog walking on the sidewalk. Photogra phic evidenc e of the street indicated that had Cronfel been looking up or around, a person walking on the sidewalk or in the adjac ent y ards could have be en visible. Cronfel testified that he

never saw Mag num running t o wa rd t h e street and was not awa re of his prese nce until the dog collided wit h Cronfel’s f

ront tire. F or his part, Murr ay testified that he did not see Cronfel before the collision and could not descr ibe his actions. No other witnesses testified a

bout the collision. Co n s id e r in g th e e v id e n c e and the infere nces that could rea son a b ly b e d r a w n th e r e f r o m in the light most favor able to the verdic t, we conclude that there is more than a scintilla of evidenc e supporting the jury ’s finding that Cronfel was neg lige nt and that his neg lige nce was a prox imate

cause of the acc ident. Fr om Cronfel’s testimony that he was “ra mping up” his speed, the jury could infer that he was riding his bicy cle a t a hig h rate of spee d. He wa s doing so on a residential street

Murra y h ad t h e burden of proof with reg ard to Cronfel’s contributory neg lige nce and, 2 conseque ntly , Cronfel challeng es the fac tual sufficie ncy of an adver se finding on an issue on which he d i d n o t h av e the burden of proof. See McD onald v. Dankworth , 212 S.W .3d 336, 340 (Tex. App.—Austin 2006, no pet.) (whe n contributory neg ligence is submitt ed burden of proof is on defe ndant). 5wher e people wer e fr equently out walking

. Cronfel’s testimony that he was focuse d on riding his bicy cle and did not see Murra y or Mag num provides a r easona ble basis for a

jury to conclude that Cronfel was not being as observa nt of his surrounding s as would a person of ordinary car e under the circ umstances. The evidenc e at trial and the rea sonable inferenc es t h at can be draw n there from constitute more than a scintilla of evidenc e supporting the jury ’s finding that Cronfel failed to do that which a person of ordinary prudenc e would have do n e u n der the same or simil ar circ umstances. Thus, there was more than a scintilla of evidenc e that Cronfel’s actions constituted neg lige nce. Although Cronfel testified that he did not see the dog befor e it collided with his tire and could have done nothing to avoid the collision, there was evidenc e that Cronfel was far en o u gh awa y from parke d car s that he could have seen M agn u m em erge from behind them into the street. The jury could rea sonably have fo u n d t h at Cronfel’s failure to see the dog resulted from his failure to be observa nt of his sur

rounding s or, alterna tively , could have disbelieved Cronfel’s testimony that he did not s ee t he dog

. The jury could also have rea sonably attributed Cronfel’s inability to avoid hitting the dog to the speed a t which C ronfe l was traveling

. This evidenc e is sufficie nt to support the jury ’s finding that Cronfel’s own neg lige nce contributed to the collision with Mag num that

cause d his injuries.

Moreove r, beca

use the jury was asked to deter mine whose neg lige nce caused the “injury in question,” as opposed to “the acc ident” or “the collision,” it was not limit ed to considering only Cronfel’s pre- collision conduct in assessing whether his neg lige nce contributed to the injuries for which he soug ht compensa tion. There was evidenc e at trial that the “injury in question” included

a scapholuna te ligament tear an d ar t h ri tis in Cronfel’s wrist that his trea ting phy sician testified

6resulted from that tear and that would require a fo u r p o i n t bone fusion. The jury could have

considere d evidenc e that Cronfel failed to act as a p er son of ordinary prudenc e would have afte r suffe ring a scapholuna te ligament tear

. There was evidenc e prese nted at trial that afte r his

s ca p h o l unate ligament was injured i n the fall, Cronfel continued to eng ag e in signific ant phy si ca l activities including lifting weig hts, doing push ups and pull ups, car ry ing hunting g ear , and cy cling

. T h ere was evidenc e that Cronfel’s phy sical thera pist was conce rned about the extent and n at u re of Cronfel’s phy sical activities and their eff ect on his wrist. There was also evidenc e t h at t here

wer e occa sions when Cronfel did not follow his phy sical thera pist’s rec ommendation to stretch and ice his wrist. Thus, there was m o re t h an a scintilla of evidenc e supporting the jury ’s finding that Cronfel’s own failure to use ordinary car e to allow the scapholuna te ligament t ea r to heal befor e resuming phy sical exercise exacer bated that injury

and contr ibuted to the need for four point bone fusion surg ery . We conclude that the evidenc e was leg ally sufficie nt to support the jury ’s finding that Cronfel’s neg lige nce was a proxi mate cause of either the broken radius, the arthritis resulting from the scapholuna te ligament tear , or both. We further conclude that the evidenc e that Cronfel’s failure
to use ordinary car e proxi mately cause d his injuries is not so wea k as to make such a finding clea rly wrong and manifestly unjust. See Cain , 709 S.W .2d at 176. Cronfel’s first two issues are overr uled.

Dam ages I n issues three throug h ten, Cronfel challeng es the leg al and fac tual sufficie ncy of the evidenc e supporting t he amount of dama g es the jury awa rded. The trial court submi tted damag es in Questi o n 3 o f t h e ch arge inquiring “wha t sum of money , if paid now in cash, would fairly and

7rea sonably compensa te [C ronfe l] for his injuries, if any , that resulted from the injury in question? ”

The jur y was asked to answe r separ ately reg arding the following elements of damag es: (1) past phy sical pain and mental ang uish ($2,500); (2) future phy sical pain and mental anguish ($1,000); (3 ) past phy sical impairment ($500); (4) future phy sical impairment ($2,000); (5) past m ed i ca l expenses ($9,345); (6) future medical expenses ($3,000); (7) past disfigur ement ($0), and (8) future disfigur ement ($0). The char g e did not define any of these elements of damag es, but did instruct the jury to c onsider eac h element separ ately and not to awa rd money on an element if a sum of money for the sa me loss was aw arde d under some othe r ele ment. 3 Dr. I ra L own, a hand surg eon and Cronfel’s trea ting phy sician at the time of trial, provided t es t i m o n y about Cronfel’s injuries and the trea tment provided by Dr. L own and by Cronfel’s previous trea ting phy sicians. Dr. L o wn ’s testimony about Cronfel’s previous medical
t re at m en t derive d from his revie w of Cronfel’s medical rec ords. The jury hear d testimony that Cronfel went to his g ener al prac titioner, Paul Keinar th, the day af

t er the acc ident. Dr. Keinar th order ed x -ra

y s of C ronfe l’s rig ht elbow, hand, shoulde r, and w rist. The x-ray s reve aled a fra cture

o f t h e radius near the elbow joint. Acc ording to Dr. L own, this was a non-surg ical fra cture t h at ty pically would re q u i re i m m o biliz ation in a sling for two wee ks, followed by rang e of motion

ex er cises. Dr. L own testified that the x -ra y also showed a separ ation betwee n the scaphoid an d lunate bones in Cronfel’s wrist that indicated to him that Cronfel had a scapholuna te ligament tear ,
a condition that over time can lead to deg ener ative joint disease and arthritis in t h e wrist joint. 4

The c harg e cla

rified: “T hat is, do not compensate twic e for the same loss, if any .” 3 The c ondition of the liga ment itself is not discernible in an x-ray

. 4 8Dr. L own t estified that afte r C ro n fe l ’s radia l fra cture heale d, the radius was shorter t han the ulna,

resulting in “ulnar impaction sy ndrome,” a condition causing pain i n t h e wr i s t that can only be
trea ted surg ically

. Dr. L own testified that an MR arthog ram taken one y ear afte r the acc ident showed that Cronfel had a larg e scapholuna te ligament tear with acc ompany ing arthritic chang es. Dr. L own opined that this condition indicated that Cronfel had suffe red a larg e scapholuna te ligament tear in J uly 2009. Cronfel first went to see Dr. L own in Aug ust 2011 afte r his trea ting phy sician passed

awa y . Cronfel prese nted to Dr. L own with a scapholuna te liga ment tear , that had, over time, cause d

an arthritic condition in Cronfel’s wrist that, in Dr. L own’s opinion, would require a four point bone fusion surg ery . Cronfel also compl ai n ed o f pain from the ulnar impaction sy ndrome. Dr. L own perf ormed surg ery to s h o rten Cronfel’s ulna, corr ecting the ulnar impaction sy ndrome, in September 2014.

Murra y also elicited testimony from Dr. L own about Cronfel’s injuries on crossexamination. Dr. L own ag ree d that he had not seen or trea ted Cronfel until more than two y ear s afte r the 2009 bicy cle a ccide nt. Dr. L own testified that Cronfe l had had a very simil ar bicy cle a ccide nt in 2005, ag ain breaking his fall wit h h i s ri gh t arm, and that his trea ting phy sician had at t hat t ime noted that Cronfel appea red to have suffe red a scapholuna te ligament tear from that previous

acc ident as we ll. Dr. L own opi ned that the t ear from the previous accident was minor. Dr. L own ag ree d that an MRI done on Cronfel’s wrist in 2005 showed that there was alre ady a tear in Cronfel’s scapholuna te liga

ment. Dr. L own also testified t hat wit hin three w eeks of the J uly 2009 acc ident, Cronfel was eng ag ing in exercise such as lifting weig hts and doing push ups and pull ups. Dr. L own

9testified that Cronfel could have had surg ery , but did not, to repa ir the larg e scapholuna te ligament

tear in 2009. Dr. L own ag ree d that shortly afte r the 2009 acc ident, Cronfel’s medi ca l re co rd s indicated that he had full ra ng e of motion of his wrist and no tende rness, a nd that an x -ra

y taken a
y ear afte r the acc ident reve aled no arthritic chang es to the bones in his wr i s t

. C ro n fel’s medical

rec ords also reve aled that he continued his exercise reg imen an d , d es p i te being advised to by his phy sical thera

pist, was not stretching befor e or icing his wrist afte r exercising

. The medical rec ords indicated that a t some point in 2011, C ronfe l “torqued” his wrist while lifting we ights.

Wit h this testimony in mind, we turn to analy sis of the j u ry ’s damag es awa rds to Cronfel.

P ast and Future P hysical Pain and Mental Angu ish I n his challeng es to t he jury ’s awa rds for past and future phy sical pain and mental ang uish, Cronfel asser

ts that the amount of damag es awa rded for eac h cate g ory is e ither supported by no evidenc e or is ag ainst the g rea t weig ht and preponde ranc e of the evidenc e. Damag es fall into
t w o b r o a d c a

te g o r ie s w h e n s o me o n e s u f

f e r s p e r s o n a l in

ju r ie s , “ e c o n o mi c a

n d n o n - e c o n o m i c d a

m a g e s . ” Golden Eagle Archery

, Inc. v. Jack

son , 116 S.W .3d 757, 763 (Tex. 2003). Non-e conomic damag es include compensa tion f

or pain, suffe ring , mental ang uish, and disfigur ement. Id. “The proce ss of

awa rding damag es for amorphous, discretionar y injuries such as mental ang uish or pain is inhere ntly difficult beca

use the alleg ed injury is a subjective, unliquidated, nonpecunia ry loss.” HCRA of Tex., Inc. v. Johnston , 178 S.W .3d 861, 871 (Tex. App.—For t Worth 2005, no pet.). When the exis tence of some pain and mental ang uish has been established, “ther e i s n o o b j ec t i v e way to measure the adequa cy of the amount awa rded as compensa tion, which is g ener ally left to the discretion of the fac t

10fi n der.” Pentes Design, Inc. v. Perez , 840 S.W .2d 75, 80 (Tex. App.—Corpus Christi 1992, wr i t

denied)

. T h e jury is g iven a g rea t deal of discretion in awa rding an amount of damag es it deems appropr iate for pain and suffe ring

. Texarkana Mem ’l Hosp. v. Murdock , 946 S.W

. 3d 836, 841 (Tex. 1997). On appea l, Cronfel arg ues that there was no evidenc e that he did not suffe r phy sical pain and mental anguish and that, g iven the extent of his injuries, the jury ’s awa rd of $2,500 is too low. Given the discretion the jury is aff orded in deter

mining the appropr iate amount of m oney to compensa te Cronfel for his past pain and mental ang uish, a subjective, unliquidated, nonpecunia ry loss, we cannot say that the awa rd has no evidentiar y support or is ag ainst the g rea t weig ht and preponde ranc e of the evidenc e. We likewise will not disturb the jury ’s fin d i n g t h at $1,000 will compensa te Cronfel for future phy sical pain and mental ang uish t h at C ro n fel will, in rea sonable p r o b a b il it y , s u s ta in in th e f

u tu r e a s a r e s u lt o f th e Ju ly 2 0 0 9 a c c id e n t. We o v e r

r u le Cr o n f e l’ s c h a ll e n g e s to the jury ’s damag es aw ard f or past and f

uture phy sical pain a

nd mental ang uish. 5

P ast and Future P hysical Impairm ent The jury awa rded Cronfel $500 for past phy sical impairment and $2,000 for future phy sical impairment. “Phy sical impairment, sometimes called loss of enjoy men t o f life,

We f urther conclude that the trial court did not abuse its discr etion by permitting Murra y 5 to elicit testimony from Cronfel about previous surg erie s Cronfel may have elec ted to underg o in the past to rebut Cronfel’s testimony that the prospec t of surg ery rela ted to injuries sustained in the 2009 acc ident cause d him mental ang uish. Cronfel has also failed to dem o n s t rate that any err or in admitting this evidenc e was harmful. See Tex. R. App. P. 44.1(a) (no judgme nt may be reve rsed on appea l on g round that trial court made err or of law unless court conclude s that err or complained of probably cause d rendition of improper judgme nt or p ro b ably preve nted appellant from proper ly p re s en ting case to court of appea ls); Farmer’s Tex. Cty

. Mut. Ins. C o. v. Pagan , 453 S.W .3d 454, 461 (Tex. App.—Houston [14t h Dist.] 2014, no pet.). 11encompa sses the loss of the injured party ’s former lifesty le.” Gene ral Motors Corp. v. Bur r y , 203 S.W .3d 514, 554 (Tex. App.—For t Worth 2006, pet. denied)

. “[L ]oss of enjoy ment of life fits b es t among the fac tors a fac tfinder may consider in assessing damag es for phy sical impairment

. I ndeed, if other elements such as pain, suffe ring , mental anguish, and disfigur ement are submitt ed, there is littl e left for which to compensa te under the cate g ory of phy sical impairment other than loss of enjoy ment of life.” Golden Eagle Archery , Inc. , 116 S.W .3d at 772. A plaintiff must g ener ally show that his phy sical impairment damag es are substantial a nd extend be y ond any pain, suffe ring , mental ang uish, lost wage s, or diminished earning capa city

. Burry , 203 S.W .3d at 555.

I n this case , “phy sical impairment” was undefine d, and the rele vant instruction was that the jury was not to awa rd any sum of money on an element if it had otherwise, under some other element, awa

rded a sum of money for the same loss. On appea l, Cronfel points to his testimony that he has a limit ed rang e of motion in his wrist and has had to adjust his exercise prog rams on acc ount of hi s phy sical i mpairment. There was also, howeve r, t estimony that af t er t h e J uly 2009 acc ident Cronfel continued to exercise, g o on hunting trips, and ride his bicy cle. We cannot conclude on this

rec ord that the awa

rd of $500 for past loss of enjoy ment of life and $1,000 for simil ar future loss of enjoy ment is e ither unsupported by any evidenc e or ag ainst the g rea t w eig ht a nd preponde ranc e of the evidenc e. We over

rule Cronfe l’s challeng es to these damag es aw ards.

P ast Me dical Exp enses Cronfel arg ues that beca

use he prese nted medical billing rec ords showing that he has paid medical providers $ 1 1 , 0 67.59, the jury ’s awa rd of only $9,345 for past medical expenses is supported by no evidenc e or is ag ainst the g rea t weig ht and preponde ranc e of the evidenc e. We will

12not disreg ard a jury ’s damag e awa rd mere ly beca

use the jury ’s rea soning in rea ching its fi gu re is unclea r. First State Bank v. Keilman , 851 S.W .2d 914, 930 (Tex. App.—Austin 1993, writ denied)

. A jury has discretion to awa rd damag es wi t hin the rang e permitted by the evidenc e as long as a rational basis exis ts for the jury ’s damag e calc ulation. Id. The jury hear d evidenc e that Cronfel had suffe red an injury to his scapholuna te ligament in 2005, four y ear s befor e the J uly 2009 acc ident, and that he did not have surg ery to repa ir the ligament at that time, nor did he have surg ery to repa ir the ligament afte r the 2009 acc ident. The jury also hear d evidenc e that, althoug h Cronfel had full rang e of motion and no pain in his wrist afte r the 2009 acc ident, he beg an to experience pain in the following y ear s, during which ti me period he enga g ed in an ex erc ise ro u t i n e that included weight lifting, doing push ups and pull ups, and cy cling

. There was also evidenc e that Cronfel was involved in another bicy cle acc ident in Aug ust 2012. Cronfel submitt ed evidenc e that $4,128 of the medical expenses he soug ht to rec over wer e paid to his trea ting phy sician, I ra L own, for the time period from Aug ust 11, 2011 throug h the date of trial. The jury could rea sonably have conclude d that not all of the trea tment D r. L own provided w as the re sult of the 2009 bicy cle a ccide nt. There was e vidence
to support a conclusion that at least some of Dr. L own’s trea tment w as attributable to fac tors other than the 2009 acc ident, including the 2005 acc ident and C ro n fe l’s continued vigor ous exercise routines during which, on at least one occa sion, he disreg arde d his phy sical thera pist’s instructions to stretch and ic e his w rist. A rational juror could infer that at least some of D r. L own’s tre atment

was nece ssitated by Cronfel’s own ac tions or injuries unrelate d to the 2009 acc ident. There was a rational basis for the jury ’s decision not to awa rd t he entire $11,067.59, and the amount awa rded is not ag ainst the g rea t weig ht and pre pondera nce of the evidenc e.

13F uture Me dical Exp enses The jury aw arde d $3,000 as fair and rea sonable compensa tion for medical car e expenses Cronfel would, in rea sonable probability , incur in the future as a result of the injury to his

arm sustained in the J uly 2009 acc ident. C ro n fe l asser ts that this amount is unsupported by the evidenc e or ag ainst the g rea t weig ht and preponde ranc e of the evidenc e and that he should have been

awa rded $14,690, the amount of future medical expenses Dr. L own estimated for a four point bone fusion. An awa

rd of future medical expenses lie s l ar gely within the jury ’s discretion. Columbia Med. Ctr. v. Bush , 122 S.W .3d 835, 863 (Tex. App.—For t Worth 2003, pet. denied)

. Be cause issues such as medical advanc es and the future costs of products and service s are , by their nature , uncer tain, appellate courts are particula rly reluc tant to disturb a jury ’s awa rd of these damag es. Sanmina-SCI Corp. v. Ogburn , 153 S.W .3d 639, 642-43 (Tex. App.—Dallas 2004, pet. denied)

. Moreove r, as with past medical e x penses, the jur y could re asonably

have found that the need for the f uture four point bone fusion surg ery was not e ntirely the result of the J uly 2009 acc ident but w as also cause d in part by the 2005 scapholuna te ligament injury and by Cronfel’s failure to have that tear or the 2 0 0 9 s c a p h o lu n a te li g a me n t te a r s u r g ic a ll y r e p a ir e d a

t th a t ti me . M o r e o v e r , th e ju

r y c o u ld r e a s o n a

b ly have conclude d th at C ronfel’s continued vigor ous exercise prog ram in the fac e of this injury contribut ed to the chronic condition requiring surg ical intervention. The jury awa rded Cro n fe l ap p ro x i m at ely one quarte r of the amount of future medical expenses Dr. L own opined he wou l d incur. There was a rational basis for the jury to aw ard some, but not all, of the estimated future medical e x penses, a

nd we will not disturb the awa rd on appe al.

14P ast and Future D isf igurem ent The jury awa

rded zero dollars to compensa te Cronfel for any past and future disfigur ement resulting from the injuries he sustained in the collision. Cronfel challeng es the leg al and fac tual sufficie ncy of the evidenc e supporting the zero damag es awa rd. “Disfig ure m en t has been define d as ‘that which impairs or injures the beauty , sy mmetry , or appea

ranc e of a person

or thing; that which rende rs unsightly , misshapen or imperfe ct, or defor ms in s o me manner .” Sunbridge Healthcare Corp. v. Penny , 160 S.W .3d 230, 252 (Tex. App.—Texarkana 2005, no pet.) (citing Goldman v. Torres , 341 S.W .2d 154, 160 (Tex. 1960)). The disfigur ement for which Cronfel seeks to rec over compensa tory damag es is the misshapen, imperfe ct, or defor med state of his ulna, 6 and the scar that resulted from his ulna surg ery . Cronfel’s testimony reg arding the basis for the

non-ec onomic damag es for which he soug ht compensa tion was that he felt pain as a result of the injury , was scar ed something was rea lly wrong , had trouble sleeping , felt nauseou s a n d w o rried when he co n t emplated the surg erie s he would underg o, experience d disruption to his daily activities, continued to fee l pain afte r the surg ery , and worrie d about future surg erie s. Wit h respe ct to the scar from the ulna surg ery , Cronfel testified that it “is a daily reminder of what [he had] been throug h.”

Disfig ureme nt, phy sical impairment, and phy si ca l pain and mental ang uish are overla pping cate g ories of damag es. Golden Eagle Archery , Inc. , 116 S.W .3d at 770. The jury was instructed not to awa

rd a sum of money

for the sa me loss under the diff

ere nt elements of damag es

I n his brief Cronfe l states that the ac cident ca used a shor

tening of his ulna re lative to his 6 radius, but the evidenc e at trial was that the heale d radius was shorter than the ulna. This mismatch require d surg ical shortening of the ulna to alleviate wrist pain cause d by the longer u l n a. I n any event, afte r the acc ident both th e u l n a an d the radius wer e shorter than they had been befor e the acc ident. 15listed. All of the neg ative impacts from the i n j u ry t h at Cronfel testified about are cover ed by the phy sical impairment, phy sical pain, and mental ang uish elements of damag es for which the jury

awa rded Cronfel damag es. There is no evidenc e in the rec ord that either the injury to his arm bones

or the scar from the surg ery cause d Cronfel to suffe r damag es unique to the disfigur ement element. For example, Cronfel did not testify that he was embar rasse d b y t h e s ca r o r the fac t that his arm bones or, in the future his wrist bones, might be asy mmetrical. There was simply no evidenc e of any damag es for the cited disfigur ement that are not subsumed within the other elements for which the jury did awa

rd damag es. Ex cepting medical expenses, the only compensa ble damag es to which Cronfel was entitled on this rec ord as a result of any claimed disfigu re m en t are pain and mental ang uish. The jury

compensa ted Cronfe l for those da mag es in its answer to Que stion No. 3(1) and (2). There fore , we cannot say that the jury ’s awa rd of zero dollars for past and future disfigur ement is unsupported by leg ally sufficie nt evidenc e or that it is ag ainst the g rea t weig ht or preponde ranc e of the e vidence

.

Having conc l u d ed t h at the amount of damag es awarde d by the j ury for each of the submit t ed el em ents of damag es wer e supported by leg ally and fac tually sufficie nt evidenc e, we

overr ule issues three throug h ten.

Sanction s Order

I n his elev en t h issue, Cronfel arg ues that the trial court abused its discretion by order ing him to pay Murra y ’s attorney s $5,000 as sanctions for what he descr ibes as conduct rela ted
to discovery of his medical rec ords. Cronfel asser ts that (1) he complied with what he believed the trial court order should ha ve been, (2) the sanction was based on his failure to authorize disclosure

16of privileg ed mental health rec ords that Murra y had not even reque sted, and (3) the amount order ed

as a sanction was excessive and the basis for that awa rd was not explained with sufficie nt specific ity to permit appellate revie w.

“B y rule, statute, and their own inhere nt power , trial courts have broad authority
to sanction litigants for specific misconduct.” In re Does 1-10 , 242 S.W .3d 805, 817 (Tex. App.—Texarkana

2007, no pet.). To support entry of a sa nctions order

under the court’s inhe rent power s, the trial judge m u s t fi nd that the party cause d signific ant interfe renc e with the leg itimate exercise of the court’s traditional core functions. See Eichelbe rger v. Eichelbe rger , 582 S.W .2d 395, 398 (Tex. 1979). We revie w a co u rt ’s sanction as an exercise of its inhere nt power for abuse of d i s cr et i o n. See Koslow ’s v. Mack ie , 796 S.W .2d 700, 704 (Tex. 1990). To deter mine whether a trial court abused i ts discretion, we must decide whether the t rial co u rt ac ted wit hout ref ere nce to any g uiding rules or principles; in other words, whether the act was arbitra ry or unrea sonable. See Goode v . Shoukfeh , 943 S.W .2d 441, 446 (Tex. 1997).

I n his motion for sanctions, Murra y asser ted that in his initial response to discovery reque sts in Aug ust 2012, Cronfel identified five trea ting phy s i ci an s an d stated that he would supplement his discovery response s with the medical rec ords from these phy sicians. Cronfel failed
to produce any medical rec ords and, in Aug ust 2013, Murra y filed a m o tion to compel. Cronfel ag ree d to produce the rec ords befor e a hear ing on that motion. Murra y ’s expert revie wed the rec ords produce d and deter

mined, based on his familiarity with one of the trea ting phy sician’s prac tice, that there wer e additional medical rec o rds that had not been produce d. Murra y then reque sted that Cronfel provide an author ization rele asing medical recor ds, which C ronfe l ref used t o do. Murra

y then filed a

second motion to compel. 17A f te r a h ear ing on Marc h 5, 2014, the trial court g rante d Murra y ’s motion and order ed Cronfel to provide a fully executed authorization to rele ase his medical rec ords by Marc h 6. On Marc h 7, Cronfel provided an authorization, but he included handwr itten restric tions to the medical

rec ords he authorized to be rele ased. Cronfel also filed an Emerg ency Motion for Protection from Discover y and s et i t for a hear ing befor e J udg e Stephen Yelenosky

. After revie wing the motion, J udg e Ye lenosky

sent the par

ties a letter sta ting:

Plaintiff has known since J u d ge Triana si g ned her order that he was to provide the rele ases without the restric tions now soug ht. Plaintiff is char g ed with knowing that his medical recor ds would contain at least som e irrelevant mate rial. So there is no emer g ency that has j ust arisen. Since t he relief sought would b e co n t rary to J udg e Triana ’s Orde r Gra

nting Def endant’ s Motion to Compel, she is the judge y ou should contac t if y ou wish to r equest a setting with he r on the Central Docke t or otherwise at her direc tion.

Be cause Murra

y was not able to obtain the reque sted rec ords by the Marc h 24, 2014 trial date, the trial was co n t i n u ed. Murra y asser ted that he was ultimately able to g et the rec ords he reque sted pursuant to t he authorization Cronfel did provide, even though the authorization contained restric tions that were c ontrary to the trial court’ s order

. Murra y also asser

ted that when he took Dr. L own’s deposition prior to the Marc h 24, 2014 trial date pursuant to a subpoena duces tecum, Dr

. L own did not bring to his deposition a complete char

t for Cronfel. Dr. L own and Cronfel’s counsel ag re ed t o p rovide Murra y with the char t. When the char

t was no t p ro v i d ed, Murra y ag ain filed a motion to compel. The trial court order ed Cronfel to provide an authoriza tion to rele ase his complete medical char t from Dr. L own by September 19, 2014

. T h e court sent the signe d order along with the authorization it direc ted

18Cronfel to sign, to Cronfel and Murra y . Cronfel signe d the authorization but ag ain amende d it with handwr itten restric tions that wer e contra ry to the trial court’s order

. Murra y then filed a motion for sanctions on October 7. Murra y asser ted in a supplemental motion for sanctions that on the day he filed and serve d Cronfel with his motion for sanctions he rec eived an authorization dated September 18, 2014 that appea

red to authorize a co m p l et e re l ease of Cronfel’s char t. Cronfel did not file a response to the motion for sanctions and arg ued at the hear ing that he did not do so beca use the issue was “ moot” as Murra

y had by then re ceive d all the medica l rec ords he r equeste d. After the hear ing, the trial court took the motion for sanctions u n d er advisement. There afte r, the c ourt signe d an orde r that re cites:

On October 28, 2014, Def endant’ s Motion for Sanctions was prese nted to the Court for c onsideration in the above-re fer ence d cause . After considering the m otion and the evidenc e off

ere d in the hear ing, the Court will find as follows: I T I S ORDERED that the portion of t he De fenda nt’s motion seeking death pe nalty sanctions is denied at this time, and the Court will instead awa rd l es s er monetary sanctions, in part to cover the attorney ’s fee s that Def endant incurre d in response to this motion an d all prior underly ing hear ings on prior motions to compel, and in p ar t as sanctions for objectionable conduct, including but not limit ed to Plaintiff’s altering t h e authorization form attached to the Order of the C ourt, signe d and filed on September 18, 2014; I T I S TH EREFORE ORDERED that Plaintiff GUI L L ERMO OCHOA-CRONF EL pay the sum o f $5,000 (F ive Thousand Dollars) in attorney ’s fee s and sanctions to Walters, Ba lido, and Crain, L .L .P. by the date of No v em b er 10, 2014, and that all discovery that Plaintiff seeks in the above- re fe re n ced cause shall cea se, except for mandatory

supplementation under the Rules.
As an initial matter, althoug h Cronfel contends that the sanctions order was an abuse of discretion beca use it was based on justified conduct—the desire not to produce privileg ed medical rec ords

19not rele vant to the persona l injuries the basi s of this lawsuit—the order itself reve als that it was

based on Cronfel’s unilatera l altera tions of the medical authorizations the trial court order ed him to sign a s well as for

other “ objectionable c onduct.” A trial court has inhere nt power to sanction to the extent nece ssary to deter , alleviate, and counte rac t bad fa ith abuse of the judicial proce ss. IFC Credit Corp. v. Spe cialty Optical Sys., Inc. , 252 S.W .3d 761, 772 (Tex. App.—Dallas 2008, pet. denied) (citing Eichelbe rger , 582 S.W .2d
at 398). The trial court expressly found that Cronfel failed to c omply with c ourt order s by altering the authorization form he was order ed to sign. Moreove r, t h e m o t i o n for sanctions outlines how Cronfel’s “objec tionable conduct” interfe red with at least one tri al s et t ing. A trial court’s core functions i nclude “t h e m anage ment of i ts docket and the i ssuance and enforce ment of i ts order s.” See In re K.A.R. , 171 S.W .3d 705, 715 (Tex. App.—Houston [14t h Dist.] 2005, no pet.). Thus, the
court had the inhere nt power to sanction Cronfel for his conduct. See Eichelbe rger , 582 S.W .2d at 398. The sanctions awa

rded must be rea sonable and also have a direc t rela tionship to the offe nsive

c o n d u c t. S e e Tr a n s A m e r ic a n Na t. G a s Co r

p . v . P o we ll , 8 1 1 S. W. 2 d 9 1 3 , 9 1 6 ( T e x. 1 9 9 1 )

. H e r e , th e sanction of $5,000 was in part to cover attorney s’ fee s made nece ssary by Cronfel’s repe ated ref usal
to c omply with disc overy reque sts a nd court order s and in part to deter Cronfel from continuing to eng ag e in “objec tionable conduct.” We cannot conclude on this rec ord t hat t he t ri al court abused its discretion by order ing Cronfel to pay Murra y ’s attorney s $5,000. We overr ule the eleve nth issue.

CONCLUSION Having overr

uled eac h of Cronfel’s eleve n appellate issues, we aff irm the trial court’s judg ment.
20__________________________________________ Scott K. Field, Just ice Be fore Chief J ustice Rose, Jus tices Pemberton a nd Field Affir med Filed: June 22, 2016

21