Affirmed in Part; Reversed and Rendered in Part; Remanded and Memorandum

Opinion filed June 28 , 2012.

In The



## Fourteenth Court of Appeals

NO. 14

- 11

- 00664

- CV

VIRIDINIA Z. PAZ , Appellant

V.

CARMEN ROSA MOLINA , Appellee

On Appeal from the 215th District Court

Harris County, Texas Trial Court Cause No. 2010

- 13301



### M E M O R A N D U M O P I N I O N
This negligence suit arises from an automobile accident in which a vehicle driven by appellant Virdinia Z. Paz struck a vehicle driven by appellee Carmen Rosa Molina, causing it to roll over three times

. A jury unanimously found that Paz negligently caused
the accident and awarded $2,000 for Molina ’ s past physical pain and mental anguish, and $2,00 0 for past physical impairment

— but zero damages for past medical care obtained for injuries she allegedly sustained as a result of the accident . T he trial court granted
Molina ’ s motion for judgment notwithstanding the verdict and awarded additional damages for Molina

’ s past medical care. We affirm in part, reverse and render in part,2

and remand to the trial court

.
B ACKGROUND On September 22, 2008, Paz was exiting a Fiesta grocery store parking lot by making a right turn in her vehicle onto the right lane of a two

- lane, one

- way feeder road alongside I

- 10 West

. As she turned
, the front left corner of h er vehicle encroached into the left lane, struck a vehicle being driven in that lane by Molina, and caused Molina ’ s vehicle to roll three times and land on its side in the grass beside the freeway. Molina was pulled from the vehicle by her son, who had been trave ling in another car behind her, and two other bystanders. Molina , who had been wearing her seatbelt, declined

emergency transport to the hospit al but later was taken there by her son . Molina sued Paz, alleging that as a result of this incident, Molina ― sustained serious and disabling injuries ‖ to her head, arm, and leg that necessitated medical care and caused physical impairment and pain

. Paz asserted a general denial and responded that she could not be
held liable for Molina

’ s asserted injuries because they were ― caused by pre

- existing, intervening or superseding medical conditions and/or disease processes. ‖
At trial, n either party presented m edical expert testimony on the question of
whether the accident caused the alleged injuries for which Molina sought medical

treatment

. Molina proffered medical records and uncontroverted affidavits concerning the cost and necessity of services obtained to treat those injuries in the total amount of $9,644.07

. The jury unanimously determined that ― the negligence, if any, of Viridi ni a Paz proximately c ause [d] the occurrence in question

. ‖ 1 The jury was then asked:

W hat sum of money , if paid now in cash, would fairly and reasonably compensate Carmen Rosa Molina for her injuries , if any, that resulted fro m the occurrence in question? 2

1 Emphasis added.

2 Emphasis added.3

In response to this question , t he jury unanimously awarded Molina (1) $2,000 for past physical pain and mental anguish
, and $2,000 for past physical impairment; and (2) zero damages for past medical care

. 3 Paz made a n unopposed request that the trial court accept the verdict, which the trial court granted.
Molina subsequently filed a motion for a j udgmen t n otwithstanding the v erdict. In her motion, she requested that the trial court disregard the jury ’ s award of zero damages for past medical care and sign a judgment awarding ― the amount of incurred and
recoverable [past] medical expenses. ‖ She argued that she was entitled to such relief ― as a matter of law

‖ under section 18.001 of the Texas Civil Practice and Remedies Code
because the affidavits concerning the cost and necessity of medical services conclusively
established the amount of Mo lina ’ s damages for past medical care as $9,644.07 , and ― no controverting evidence was introduced ‖ concerning that amount

. She further submitted
unredacted bills to establish medical care expenses in the ― paid ‖ amount of $5,517.25 under
Texas Civil Practic es and Remedies Code section 41.0105. Molina did not seek a new
trial.
After a hearing on the motion, the trial court signed a judgment notwithstanding
the verdict awarding $5,517.26 in damages for past medical care. The trial court also
awarded damages in conformity with the remainder of the jury ’ s verdict, as well as pre

judgment interest.

Paz appeals, arguing that the trial court erred in granting Molina ’ s motion for a judgment notwithstanding the verdict

. Molina declined to file a brief in response o n appeal.

A NALYSIS

I. Judgment Notwithstanding the Verdict

― Judgment without or against a jury verdict is proper only when the law does not

3 The jury also awarded zero damages for future medical care, physical pain, mental anguish, and physical impairment.4

permit reasonable jurors to decide otherwise. ‖ Downing v. Burns , 348 S.W.3d 415, 421 (Tex. App.

— Houston [14th Dist.] 2011, no pet.) (citing City of Keller v. Wilson , 168 S.W.3d 802, 823 (Tex. 2005)). For a party to successfully attack an adverse jury finding
on which she had the burden of proof, she must show that the evidence establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co. v. Francis , 46 S.W.3d 237, 241 (Tex. 2001) (per curiam). In reviewing a trial court ’ s judgment notwithstanding the verdict on such a ― matter of law

‖ challenge, we must first examine the
record for evide nce supporting the finding, and then examine the entire record to determine if the contrary proposition is conclusively established as a matter of law. Id

.

― Evidence is conclusive only if reasonable people could not differ in their conclusions, a

matter that depends on the facts of each case. ‖ City of Keller , 168 S.W.3d at 815

– 16. We
review de novo the trial court ’ s ruling on a motion for judgment notwithstanding the
verdict. Se e In re Humphreys , 880 S.W.2d 402, 404 (Tex. 1994) (questions of law are

su bject to de novo review); Hicks v. Hicks , 348 S.W.3d 281, 284 (Tex. App.

— Houston [14th Dist.] 2011, no pet.) (same).
Paz argues in her first issue on appeal that the jury heard evidence upon which it properly could have determined the accident did not cause all the alleged injuries for which Molina sought medical care , and that Molina therefore was not entitled
, as a matter of law
, to damages for all of her past medical care

. See Dow Chem. Co. , 46 S.W.3d at
241. Paz further sugges ts that the evidence does not conclusively establish Molina ’ s entitlement to such damages because (1) the alleged injuries were ― highly subjective and
unable to be corroborated by medical testing ‖ ; (2) Molina

’ s testimony and her medical
records contained c onflicting reports of pain and injury; and (3) Molina failed to present any evidence linking the reported injuries for which she sought medical care to the
accident caused by Paz

’ s negligence

. The trial court set aside the jury ’ s award of zero damages for past medical care
because ― the evidence presented at trial included uncontroverted exhibits made up of medical and billing record affidavits [,] which included itemization of amounts of medical5

bills that were actually paid

. ‖ Mo lina did submit uncontroverted affidavits concerning cost and necessity of services pursuant to Texas Civil Practice and Remedies Code Chapter 18

. 4 However, as Paz points out in her third issue, these affidavits, when uncontested, are merely sufficient to support a finding that the amount charged was
reasonable and that the service s were necessary. See T EX

. C IV

. P RAC

. & R EM

. C ODE
A NN

. § 18.001. The affidavits do not purport to establish a causal nexus between the
accident and the medical care expenses , and nothing in Chapter 18 concerns proof of
causation in this form

. See Christus Health v. Dorriety , 345 S.W.3d 104, 108 (Tex. App.

— Houston [14th Dist.] 2011, pet. denied). Thus, evidence that Molina ’ s medical care expenses were reasonable and necessary is insufficient to establish causation as a matter
of law for all her medical care expenses.
Molina has never argued that the evidence a t trial conclusively establishes the elements of injury and causation as they relate to damages for past medical care
, and we agree with Paz that it does not

. 5 Before trial, the parties discussed this issue in the
context of their respective motions in limine with the trial court : [COUNSEL FOR PAZ]: All right. Your Honor, this is a car accident case. I pled a general den ial. I also pled for a preexisting condition on behalf of the plaintiff. This motion in limine, the way that I read it, seeks to exclude me even arguing the causation of whether the accident caused an injury and whether or not there is any preexisting condition that may be the cause of any current complaint.

* * * THE COURT: So you want to argue that the accident didn ’ t cause the injury that she is complaining about?

4 Section 18.001(b) of the Civil Practice and Remedies Code provides, in relevant part: Unless a controverting affidavit is filed as provided by this section, an affidavit that the amount a person charged for a service was reasonable at the time and place that the service was provided and that the service was necessary is sufficient evidence to support a finding o f fact by judge or jury that the amount charged was reasonable or that the service was necessary.
T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 18.001 (West 2008).

5 Although the trial court suggested at the hearing that Paz somehow had relieved Molina of her burde n to prove causation, Paz denied ever making and the record does not reflect such a concession.6

[COUNSEL FOR PAZ]: Well, that ’ s part of the plaintiff

’ s burden of proof. He has to establish causation. THE COURT: Right.

* * * [COUNSEL FOR MOLINA]: My only intention, Your Honor, is that we have presented all of our evidence by way of affidavit to invoke the time and savings methods of the Civil Practice and Remedies Code. T hey didn ’ t controvert the affidavits, No. 1. And No. 2, they have designated no expert on causation on medical treatment, etcetera. So I don ’ t know how they can now come into court today and argue [about] medical causation without any experts being design ated with no controverted affidavit on file.

* * * THE COURT: I mean causation is an argument. Causation is something that he should be allowed to do. Filing of the affidavit alone by itself does not obviate that. . . . So if your intent by [ fili ng the motion in limine] was to eliminate causation from your case, you lose. [COUNSEL FOR MOLINA]: I understand. THE COURT: Got it.

The record reflects that the issue of causation for some or all of the medical care expenses related to Molina ’ s alleged injuries was a conte sted issue throughout the rest of
trial

. Molina testified that she was wearing her seatbelt during the accident and that she
was able to walk around after she was assisted out of her vehicle. A fter she declined emergency medical assis tance at the scene and was transported by her son to the Memorial Herman Hospital emergency room , she initially complained of pain related to
abrasions on her elb ow and hand , then later complained of pain in her neck and back.
The records also reflect tha t she was discharged two hour s later with ― no serious injury

‖
and ― no complaints of pain,

‖ although Molina testified that she continued to complain of pain in her neck and back the entire time she was at the hospital.
Molina was instructed to follow up w ith her primary care physician, who noted that Molina reported experiencing ― no pain at the time till she awoke AM. ‖ Her primary care physician ordered an x

- ray of Molina ’ s spine , which shows ― C5

- C6, C6

- C7: Spondylosis, uncinate hypertrophy, and mild invertebral disc height loss. ‖ No expert7

testimony was presented to explain this medical finding, and Molina testified that the

x

- ray was the first one she had ever undergone, and that she did not know if it depicted a
condition that existed before the a ccident or not

. Molina next visited an orthopedic specialist, who made the following initial
observation s based on Molina ’ s complaints : [P]atient has pain and discomfort in the cervical spine, left elbow, back and knees. She has difficulty moving her neck . It looks like she has a little torticollis because of the spasm. She has some numbing and heaviness to both upper extremities and headaches. Flexion and extension is painful, so is the rotation. There is an abrasion to the left elbow. There is also an abrasion to the right knee. The orthopedic specialist ordered an MRI of Molina ’ s spine, which showed ― [a]t C3

- 4,
small 2

- mm central disc protrusion and at C5

- 6, 2

- mm disc bulging mildly flat tens the
ventral thecal sac.

‖ Again, n o expert testimony was p resented to explain this medical finding, and Molina testified that she did not know if the MRI results revealed a condition
that existed before the accident or not.
The orthopedic specialist recommended that Molina undergo physical therapy,
which she comm enced more than three weeks after the accident for three times a week

. Molina initially reported pain in her neck and upper back at an intensity level of 0 and 3

– 5
on a scale of 1

– 10 , and she indicated that her pain was at its worst when driving. Two day s after her first session , she reported that she was ― feeling bett er

‖ and was suffering from less intense pain. During six of her eleven physical therapy sessions, Molina reported that she was in no pain.

Molina testified that her neck ― was real good

‖ before the accident , but afterwards, ― I always have pain.

‖ She also testified that her pain was not ― 100 percent better ‖ after physical therapy, but that it was ― [a] little bit, but not that much better. ‖ In subsequent visits to her primary care physicia n in the 18 months following the accident, Molina complained of, among other things, anxiety, depression, and unrelated heel and stomach pain, but her records do not reflect that she reported any neck or back pain during those8

visits. Molina testified tha t the pain has become ― normal ‖ for her, in that she has finally accepted that she must ―

live with the pain.

‖
Regarding the amount of damages she was seeking, Molina testified on direct
examination:
Q. Now, Ms. Molina, I want to ask you what it is that we ’ r e here about today. What are you asking from the jury? A. It ’ s very difficult for me to be here today. If it wasn ’ t because of the accident, I would not be here. Q. I understand. But what are you asking the jury to do? A. Well, all of the proof are [sic] there. All of the proofs [sic] are there. They ’ re the ones that can decide. I cannot decide. Q. Again, I

’ m doing a bad job asking the question. What I want to know is: Is there something that you want the jury to do for you related to your case? Do y ou want the jury to take care of your medical bills? A. Yes. Q. Is there anything else that you want the jury to do for you related to your case? A. Well, to compensate me for everything that I went through. Q. And what do you believe that ’ s worth? A. I ’ m going to stay like this and not any money from the world is going to take away this. Q. Okay. What value do you believe your case is worth from what you experienced? A. I haven

’ t even thought about that, so I don ’ t know what to say. Q. Well, you want them to take care of your medical bills? A. Yes. The jury was not required to accept Molina ’ s testimony regarding (1) the extent of

any injuries she allegedly sustained in the accident
, or (2) whether her alleged pain indicated an injury that necessitated all of the medical care she received

. Nor was the jury required to decide, based on Molina ’ s medical records
, that the tr eatment provided

was necessary, or that any perceived injury reflected in such records was caused by the
accident rather than age or some underlying condition. Based on this record, we cannot9

say as a matter of law that there was no proper basis on which the jury could award
Molina zero damages for past medical care

. See Dow Chem. Co. , 46 S.W.3d at 241.

We furthe r note that the cases Molina relied upon in support of her motion for judgment notwithstanding the verdict miss the mark. Each of the cases cited holds that where the damages awarded by the jury are so manifestly low as to be against the great weight and preponderance of the evidence, the court may grant a new trial. See, e.g. , Horton v. Denny ’ s , Inc. , 128 S.W.3d 256 , 260

– 61 (Tex. App.

— Tyler 2003, pet. denied). Nothing in these cases authorizes a trial court or an appellate court to disregard the jury ’ s damage award and select a new one

— particularly where, as here, the medical care expenses are not for treatment related to objective injuries that were conclusively caused by the
defendant

. A s Molina did not request a new trial, none of the authority upon which she
relied supports her argument that judgment notwithstanding the verdict would have been

proper. Accordingly, we conclude that trial court erred in granting Molina’s motion for judgment notwithstanding the jury’s award of zero damages for medical care expenses and substituting an award for all of Molina’s claimed medical care damages. 6 See Dow Chem.
Co. , 46 S.W.3d at 241. We sustain Paz ’ s first and third issue s

.
II. Remedy
If we conclude on appeal that a trial court s igned a judgment notwithstanding the
verd ict in error , we must reverse the trial court ’ s judgment and enter one in conformity
with the jury

’ s verdict unless the opposing party presents grounds sufficient to ― vitiate [] the jury ’ s verdict ‖ or ― prevent [] an a ffirmance of the judgment had one been rendered by the trial court in harmony with the verdict. ‖ T EX

. R. C IV

. P. 324 (c) (when trial court renders

6 Molina also urged in the trial court that the jury’s verdict was improper because a jury note during deliberations indicated that the jury ―wanted to consid er‖ whether Molina’s medical care expenses were covered by insurance, and therefore ―did not appreciate‖ the trial court’s instruction not to consider whether Molina’s medical care was covered by insurance. However, even if Molina could have prevailed

on this argument, she would be entitled to no more than a new trial

— which she did not seek. See T EX

. R. C IV

. P. 327 (circumstances under which trial court may grant new trial based on alleged juror misconduct).10

judgment notwithstanding the verdict, failure of appellee to bring forward by cross

- point on appeal additiona l alternative grounds to ― vitiate the verdict shall be deemed a waiver
thereof ‖ ); T EX

. R. A PP

. P. 38.2(b)(1) (same); Church ’ s Fried Chicken, Inc. v. Jim Dandy Fast Foods, Inc. , 608 S.W.2d 242, 245 (Tex. Civ. App.

— Houston [14th Dist.] 1980 , writ ref’d n.r.e

. ) (citing Miller v. Bock Laundry Mach

. Co. , 568 S.W.2d 648 (Tex. 1977), and
Jackson v. Ewton , 411 S.W.2d 715 (Tex. 1967)). Because Molina has declined to file a
brief on appeal or make a cross

- point in support of the trial court ’ s judgment
notwithstandin g the verdict , we have no such grounds before us.

T herefore , we must reverse the portion of the trial court ’ s judgment awarding $5,517.26 in damages for past medical care and render judgment reinstating the jury ’ s award of zero damages. We vacate the po rtion of the trial court’s judgment awarding pre

judgment interest, and remand to the trial court for a recalculation of pre

- judgment interest, in light of the reduction in the total damage award. We affirm the trial court’s judgment in all other respects

.

/s/ Sharon McCally Justice
Panel consists of Justices Frost, McCally , and Mirabal

. 7

7 Senior Justice Margaret Garner Mirabal sitt ing by assignment.