In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-12-00168-CV 

OFELIA D. GARCIA, APPELLANT 

 

V. 

 

CARLOS ALFREDO CERDA AND ELISEO CERDA, JR., APPELLEES 

 

On Appeal from the 96th District Court 

Tarrant County, Texas 

Trial Court No. 096-246065-10, Honorable R. H. Wallace, Presiding 

 

July 15, 2013 

 

MEMORANDUM OPINION 

 

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. 

Appellant, Ofelia D. Garcia, appeals the trial court’s granting of a judgment in 

favor of Eliseo Cerda, Jr.1for medical bills incurred by Cerda while he was a minor. We 

will reverse and remand with instructions.

 

1 Eliseo Cerda, Jr.’s father, Eliseo Cerda, Sr., was not a party to this action at the 

time of trial. Therefore, all references to “Cerda” will refer to Eliseo Cerda, Jr.
2

Factual & Procedural Background2

Initially, we note that Garcia is not contesting the sufficiency of the evidence and, 

therefore, we will address only the facts necessary for the disposition of the issues 

raised. 

Garcia and Cerda were involved in a vehicle accident on February 14, 2009. 

Cerda was a passenger in a car driven by his brother, Carlos Alfredo Cerda. At the time 

of the accident, Cerda was 16 years of age. Cerda received medical care, via 

chiropractic treatment, through April 15, 2009. Cerda was a minor the entire time he 

was receiving medical treatment. 

During the trial, Garcia advised the trial court that she was objecting to proof of 

the cost of medical treatment received by Cerda because he was a minor at the time of 

treatment. In furtherance of that trial position, Garcia objected to the exhibits and 

testimony tending to prove what medical treatment was received, and, when her 

objection was overruled, obtained a running objection to that evidence. At the close of 

evidence, the trial court presented trial counsel with the court’s proposed charge to the 

jury. The proposed jury question concerning Cerda’s damages inquired about 

“Reasonable expenses of necessary medical care incurred in the past.” Garcia 

objected to the submission of the issue contending that all of those amounts were 

 

2 Pursuant to the Texas Supreme Court’s docket equalization efforts, this case 

was transferred to this Court from the Second Court of Appeals. See TEX. GOV’T CODE 

ANN. § 73.001 (West 2013). That being so, we must decide this case “in accordance 

with the precedent of the transferor court under principles of stare decisis” if our 

decision otherwise would have been inconsistent with the precedent of the transferor 

court. TEX. R. APP. P. 41.3; Phillips v. Phillips, 296 S.W.3d 656, 672 (Tex.App.—El 

Paso 2009, pet. denied).
3

incurred when Cerda was a minor, and, as such, Cerda did not have a right to recover 

those damages. The trial court overruled the objection.

The jury subsequently returned their answers to the jury questions and awarded 

for Cerda $400 for physical pain and mental suffering sustained in the past. The jury 

also awarded Cerda $4,708 for reasonable expenses of necessary medical care 

incurred in the past. Garcia filed a motion requesting the trial court to disregard the 

jury’s answer to question 4(e), regarding the reasonable expenses of necessary medical 

care incurred in the past. The trial court overruled the motion to disregard by 

subsequently entering judgment in favor of Cerda as supported by the jury’s answers. 

This appeal followed.3

Garcia presents two issues on appeal. First, Garcia contends that the trial 

court’s submission of the jury question regarding reasonable and necessary medical 

care Cerda incurred in the past was reversible error. Second, Garcia contends that the 

trial court committed reversible error by failing to disregard the jury’s answer regarding 

the reasonable and necessary medical care incurred in the past. Agreeing with Garcia’s 

first issue, we reverse and remand this matter to the trial court.

Analysis

Garcia’s first issue concerns the court’s charge and the jury question involving 

Cerda’s medical expenses in the past. Garcia insists the question should not have 

 

3

Judgment was also entered in favor of Carlos Alfredo Cerda. Garcia has not 

appealed that portion of the judgment.
4

been submitted to the jury.4 We review claimed error in the court's charge under an 

abuse of discretion standard. See Tex. Dep't of Human Servs. v. E.B., 802 S.W.2d 647, 

649 (Tex. 1990). A trial court abuses its discretion if it acts in an arbitrary or 

unreasonable manner, or if it acts without reference to any guiding rules or principles. 

See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). A 

trial court's clear failure to analyze or apply the law correctly constitutes an abuse of 

discretion. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding); 

Cayton v. Moore, 224 S.W.3d 440, 445 (Tex.App.--Dallas 2007, no pet.). 

Texas law has long held that the cause of action for recovery of reasonable and 

necessary medical expenses incurred by a minor belongs to the minor’s parents. See

Sax v. Votteiler, 648 S.W.2d 661, 666 (Tex. 1983) (citing Tex. & P. Ry. Co. v. Morin, 66 

Tex. 225, 18 S.W. 503 (1886)). The Second Court of Appeals followed this holding in 

Morrell v. Finke, 184 S.W.3d 257, 290-91 (Tex.App.—Fort Worth 2005, pet. denied). A 

child may, however, recover damages for pain and suffering after he reaches the age of 

majority. Id. at 290.

The record before this Court clearly demonstrates that Cerda was a minor at the 

time of the accident. Further, the record demonstrates that all of the medical treatment 

he received in connection with the accident was rendered while he was a minor. Under 

these facts, the trial court acted without reference to any guiding rules or principles 

when it overruled Garcia’s objection to the jury question concerning the reasonable and 

necessary medical expenses incurred by Cerda. See Downer, 701 S.W.2d at 241-42. 

This failure of the trial court to analyze and apply the law correctly was an abuse of its 

 

4 Cerda, did not favor us with a response brief.
5

discretion. See Walker, 827 S.W.2d at 840; Cayton, 224 S.W.3d at 445. Accordingly, 

we sustain Garcia’s first issue.

Additionally, we note that Garcia has not attacked the award to Cerda of $400 for 

pain and suffering sustained in the past. Such an award is permissible. See Morrell, 

184 S.W.3d at 290. Accordingly, that portion of this judgment is affirmed. Finally, our 

consideration of Garcia’s second issue is pretermitted as a result of our holding herein. 

See TEX. R. APP. P. 47.1.

Conclusion

We reverse the judgment of the trial court and remand this cause to the trial court 

with instructions to enter a judgment in favor of Cerda for pain and suffering sustained in 

the past along with pre-judgment interest, in conformity with this opinion.

Mackey K. Hancock

 Justice