Affirmed in P a rt , Remittitur Suggested in Part , and Memorandum Opinion

filed November 23 , 2021

.

In The



## Fourteenth Court of Appeals

NO. 14

- 18

- 00800

- CV

ANA LISA MINES, PERSONAL REPRESENTATIVE OF THE ESTATE OF J ORGE LUIS MINES , AN D OLD AMERICA N MUT UAL F IRE

INSURANCE COMPANY , Appell ant s

V.
KENON D. MURPHY , Appellee

On Appeal from the 152nd Di strict Court

Harris County, Texas Trial Court Cause No. 2013

- 66594

MEMORANDUM OPINION
Appel lant s Ana Lisa Mines
, P erson al R epresentative of the Estate of J o rge L uis Mines
, and Old American C o unt y Mutual F ire I nsurance Company appeal th e jury verdict s in fav or of appellee Kenon D. Murphy. In e ight issues appellant s
assert that this court sh ould reverse the trial court ’ s ju dgment

. We affirm in pa rt and sugges t re mittitur in part

.2 I. B ACKGROUND Appel lee Kenon D. Murphy was injured i n a motor v ehicle collision when
his tractor

- trailer was struck head

- on b y a vehicle driven by Jorge Luis Mines

. Jorge died from his inju ries

. Appellee sued appellant “ Ana L isa Mine s , p e rsonal representative of the estate of Jorge Luis Mines ” asserting claims of ne gligence
, negligence per se, and gross negligence for the injuries he received from the
collis ion.
After filing suit, appellee ’ s trial cou nsel sent a deman d lette r to app el la n t s ’
trial counsel detailing the injuries suffere d by appellee i n the collision and demanding that appellant Old America n tender the insurance policy limits to settle appellee ’ s claims. Th e parties disagree abo ut what happened ne xt. Old Ameri ca n
cont en d e d that it accepted the offer of settlement

. A ppelle e contended that Old
Americ an sent a counter offer instead o f an acceptance and failed to accept the offer by not “ tendering ” the amount demanded in the offer by the deadline.

Old American fi led a mo ti on fo r enforcement of the settlement agreement and a motion for summary judgment on its claims for breach of the settlement agreement ; both were denied b y the trial court. O ld A m e rican and appel lee tried to a jury the issue of whether the partie s enter ed in t o a settlement agree ment . The jury retur ned a verdict in favor of appellee , finding that no settlement agreement

was ent ered int o between the parties

. Because the jury found th at there was n o settlement agree ment, the tria l court co nducted a second ju ry trial on l iabil ity and damages for appellee ’ s personal injury c laims

. The second jury returned a verdict in favor of appellee . Th is appeal followed.3

II. E NFORCEMENT AND S U MMARY J UDGMENT M OTIONS In appellan ts ’ fir st issue, the y argue tha t the trial cou rt “e r red by fai ling to acknowledge and enforce a valid settlement agreement . . . and by proceeding to jury trials in this case.” The ge neral rule is that a denial of a summary judgment
cannot be reviewed on appeal. United Parc el Serv. v . Tasdemiroglu
, 25 S. W .3d 914, 9 16 ( T ex. App.

— Houston [14th Dist.] 2000, pet. denied ). Where a motion for summary judgment is denied and the case is tried on the merits, the order denying the summary judgment can not be reviewed on appeal. Id . ( citing
Ackermann v. Vorden bau m , 403 S.W.2d 36 2 , 365 (Tex. 1996)). The party’s remedy is to assign error to the trial court’s judgment ultimately rendered following tria l on the merits. Id

.
In the first issue, appellant s a re appealing the denial of their motion s for summary judgme nt an d motion fo r e n f orcement

. 1 T he appropriate remedy is to assign error to the trial court’s judgment following the trial on the merits. See id

. We overrule appellants ’ first issue.

III. J URY C HARG E In appellants ’ second issue, they ar gue that the trial c our t e rred by

s ubmit t ing the definition of the wor d “ tender ” as proposed by appellee because “ it

1 In t he first i ssue appellants do not explicitly state they are appealing the denial of the

su mmary ju dgment and enforcemen t motions

. H owe ver, appellants frame the issue a s one of the trial cour t committing err or because it allowed t he case to proceed to a jur y trial . Appellants cite only to the clerk ’ s rec ord , including the s ummary judgment a nd enforcem ent motions as well a s the notic e of rule 11 agreement . There are no citations to the eviden ce admitted at tr ial or any trial test i mony

. Appellants complain in issue one that “ the Trial Court subm i tted the issue to a jury . . . [and] committed re versible error ” and “ [ b ]ecaus e of the sett lement
, neither of the trials that t ook place was necessary

. ” Appella nts di d not make a motion f o r directed verdict at any time during the first trial or obj ect to the submi ssion of the case t o the jury

. In th eir third i ssue, appellan t s cont e nd th at “ the re was legally insufficient evidenc e to support the jury ’ s verdict on Questi on 1 (settlement)

. . . o r the jury ’ s ve rdict was against the great weight and prep onderance of th e evid ence. ”4

was defective and misleading when applied to the .

. . demand letter

. ” Appellant s
argue that the “ de finition was not in conformity with the evidence introduce d
d ur i ng trial a nd w as thus ca lculated to result in the rendition of an improper jury
verdict

. ” Appellee contends that the definition was substantially correct and that appellants w ai ved any error b y failing to object.

A. General Legal Principles

“ A reques t b y e i ther par ty fo r any questions , definitions , or instructions shall be made separate and apart from suc h party ’ s objections to the court ’ s charge. ”
Tex. R. Civ. P. 273

. “ A party objecting to a charge must point out distinct ly the objectionable matter an d t h e ground s for the objection . Any complaint as to a

. . . definition . . . is waived unless specifically included in the o bjections. ” Tex. R.
Civ. P. 274

. “ The rule creates a t wo

- pronged test: objections to the charge mus t specif y the error and the le ga l bases of the objection

. ” Meyers v. 8007 Burnet Holdings, LLC
, 600 S.W.3d 412, 42 2 (Tex. App.

— El Paso 2020, pet. denie d)

.

“ Preservation of error generally depends on ‘ whether t he party made the trial court

awar e of the co mplaint, timely and plainly , a nd o b tained a rul ing. ’ ” Ford Motor
Co. v. Ledesma , 242 S.W.3d 32, 43 (Tex. 200 7) (quoting State Dep ’ t of Highways & Pub. Transp. v. Payne , 838 S.W.2d 235, 241 (Tex. 1992) ).

B. Backgr ound

Dur ing the jury charge conference, the tria l court presented the p ar t ie s with
its prop osed charge. Old American objected to the charge and o ffered a written
instruction for the definition of “ tender ” to the trial cour t. 2 Appellee also objected

2 The trial court also r efu sed two more instructi o ns pro ffered by Old American for inclusion in the jury charge. Appellants arg ue that it was er r or for the trial cou r t to refuse to inclu de these instructions but do not argue how the failure t o include the se ins tructions was an
a bus e of dis cretion or prov ide an y citation to authority . Appellants further fail to argue or demonstrat e how the exclusion of these instr ucti o ns probably caused the re ndition of an5

and offered a w ritten instruction for the definit ion of “tender. ” The t rial co ur t refused to in cl ude either appellee ’s or Old American ’s proposed definition s of “tender ” and conclude d the jury c harge conference

. T h e next morning prior to reading the charge t o the jury
, the trial court decided that it w ould include appellee ’s def

ini ti o n of “ten der ” in the charge after reviewing the case s submitted by the pa rties. 3 Appellants ’ counsel requested additional time to di scuss the trial

court ’s d eci sion , b ut the tri al court told him it was unnecessary

. There w ere no further objections or d i s c ussion about the jury charge . T h e trial court then read the charge to t he jury.

C. A nalysis

H ere, while the trial court was fully aware of appellants ’ requested
defi nition , appe llants did not object to the in clusion of th e definition provided by

ap pel le e

. 4 Se e T ex. R . Civ. P. 273 , 274 ; se e also EYM Diner L.P. v. Yousef , 05

- 19

- 00636

- CV, 2020 WL 6883171, at *11 (Tex. App.

— Dallas Nov. 24, 2020, no pet. h.) ( “ But more importantly, t he pretrial proposed charges, standing alone , did no t apprise the trial ju dg e o f the p urpor ted problems with and errors in the court ’ s charge that [the appellants] now assert on appeal, nor did they give the trial judge an opportunity to cure those purport ed errors. ” ) ; Meyers , 600 S.W.3d at 42 3 ( “ Ha d
counsel explained why its su gg e s t ed char ge mo re clo sely followed the statute, we might view the situation differently. ” ). Old American failed to object to the inclusion of appellee ’ s definition of tender and a l ert the trial court as to why it was

improper j udgment or probably prevent ed the appellant fr om properly presen tin g its ca se t o this

c ou r t

. Se e Tex. R. Ap p . P. 44.1 ; Columbia Rio Grande Healt hcare, L.P. v. H awley
, 284 S.W.3d 851, 85 6 (Tex. 2009)

. T her e fore, any argument that the trial c ourt erred in refusing these instructions has been waived. See Tex. R. App. P . 3 8.1(h).

3 The cases su bmitte d and briefi n g , if any, are not part of the recor d on appeal.

4 A ppella nt states “ [o]ver the o bjection of Int e rvenor Old America n . .

. ” but does not point to where such an objection was made

. No such obj ection appears in the r ecord.6

errone ous or why its definition w as a m o r e accur ate s tatement o f the law in this

case. See Meyers , 600 S.W.3d at 42 3

. O n appeal appellant s argue that the
definition submitted was not an accurate statement of the law b ecause in c ertain
cir cu mstances “ tender ” doe s not mean the actual prod ucti on o f funds and c ites to cases supporting that contention . However, the record does not reflect that such an argument was made to the trial court s o as to allow the trial court to correct any

erro r in the charge prio r to read ing the charge to the jury

. T h e proposed defin ition provided by appellant did not apprise the trial court of the purported pr oblems with the charge that appellants now assert on appeal. See Cruz v. Andrews Restoration,
Inc. , 364 S.W

. 3d 817, 829 (Tex. 201 2) ( “ Our procedural rules requ i r e t he lawy ers
t o tell the court about such errors before the charge is formally submitted to a jury. ” ) ; Ledesma , 242 S.W.3d at 43

– 44 (con cluding jury charge error preserved
whe re “ [t]he objection
, propos ed question and instr uction, and supporting

aut hori t i e s provide d the trial court with a plain objection identifying the error in the charge that we recognize today, ‘ with sufficient specific ity to make the trial court
aware of th e complaint. ’ ” (quoting Tex. R. App. P. 33.1(a)( 1)(A) ); Meyers , 600
S.W.3d at 4 2 3 ( “ But l eavin g the task of discerning the differences between the two
forms of the questions to the trial court simply asks too much. ” ). Thus, we a gree with appellee that a ppellan ts have not preserved the ir comp laint of jury charge

error with reg ard t o t he defin ition of the term “ tender ” that was submitted to the jury

. Appellants argue that the trial court did not allow Old American to voice its objection and that the prio r discussion was not on the record beca use it oc curred during the informa l jur y ch ar ge con feren ce. While this may be the case, Old
America n did not prese rve the error that it now asserts on appeal because we

cannot a scertain fro m the record whether the ar gume nts made on appeal were7

made to the trial co urt prior to the charge be ing r e ad to the jury. See Tex. R. App. P. 33.1(a)(1)(A); Cruz , 364 S.W.3d at 8 31 ( “ Prot ech can compla in on appeal only
if i t made the trial court aware, timel y and plain ly, of the p urported problem an d obtained a ruling

. ” )

. The rules re quire that prior t o pr e s en ting a n err or to the appella te court, the party must firs t give the trial court the opportunity to hear the argument and correct the alleged error. See Cruz , 364 S.W.3d at 8 31

. We overrule appellants ’ second i ssue.
IV. L E GAL AND F ACTU AL S U FFI CIENC Y IN T HE F I RST T RI AL In appellant s ’ thi rd issue, appellant s argue that the e vidence is “legally insufficient to support the jury’s verdict” on the settlement agreement in the first

t rial, or “the jury’s verdict was agains t the gre at weight and preponderanc e of t he
evidenc e.”

A. General Legal Principles
When reviewing the legal sufficiency of the evidence, we consider the
evid ence in the light most favorable to the challenged finding and indulge every
reasonable inference th at would support it. City of Kelle r v. W il son , 168 S.W. 3d 802, 823 (Tex. 2005). We must credit favorable evidence if a reasonable factfinder
could and disr egard contrary evidence unless a reasonable factfinder could

not. See id. at 827. We must determine whether t he evidence at trial wou ld ena b l e reasonab le an d fair

- minded people to fin d the facts at issue. See id. The factfinder is the only judge of witness credibility and the weight to give to testimony.
See id. at 819. A party attacking legal sufficienc y relativ e to an adverse finding on whi c h it
had th e bur den of proof must demonstrate that the evidence conclusively
establishes all vital facts in support of the issue. Dow Chem. Co. v. Francis
, 468

S.W.3d 237, 241 (Tex. 2001) (per curiam)

. We review the e ntire rec ord to
determine if t he contr a r y propositi on is established as a matter of law only if there is no evidence to support the judgment

. See id. Anythi ng more than a scintilla of evidence is legally sufficient to support the judgment. See Wil son , 168 S.W.3d at 822

. The fina l test for legal sufficiency is whether the evidence would enable
reasonable and fair

- minded people to reach the verdict under review. Id. at 827.
The factfinder is the sole judge of witness credibil ity and t he weight to g ive
witnesses ’ t e s timony. I

d. at 819.

“ Ou r review is restricted t o the jury charge as submitted when there was no objection to the i nstruction. ” Seger v. Yorkshire Ins. Co. , Ltd. , 50 3 S.W.3d 38 8, 407 (Tex. 2016). “ Even if anothe r legal t heory was argu ed to the jury a n d explained b y the lawy ers in argument, we are bound by the instructions given to the j ury and presume that the jury followed those instruction. ” Id

. (citing
Columbia Rio Gra nde Heal thcare, L.P. v. Hawle y , 284 S. W. 3d 851, 861

– 62 (Tex. 2009) ).

When r e v iewing a c halle nge to the fac tual sufficiency of the evidence, we
examine the entire rec ord, considering both the evidence in favor of, and contrary to, the challenged finding. Mar

. Overseas Corp . v. Ellis , 971 S.W.2d 4 02, 406

– 07 (T ex. 1998). When a party atta cks t he factual suffici ency of an adverse finding on
which it bore the burden of proof, it must establish that the finding is against the great weight of the pre ponderance of the evidence. Schear Hampton Drywall, LLC
v. Founde rs Commercial, Lt d

. , 586 S.W. 3d 80 (Tex. App.

— Housto n [14th Dist.] 2019, no pet.) (citing Dow C hem. Co. , 46 S.W.3d at 242 ). The trier of fact stands as the sole judge of the credibility of the witnesses and th e weight to be give n to their testimony

. GTE Mobi lnet of S. Tex. v. Pascouet , 61 S.W.3d 599, 615

– 16 (Tex. App.

— Houston [14th Dist.] 2001, pet. denied). We may not substitute our9

own judg ment for that of the trier of fact, even if we would reach a differ ent

answe r on the e vidence. Mar. O v e rseas Corp

. , 97 1 S.W.2d at 407. It takes far less
evidence t o affirm a judgment than to reverse a judgment. Pascouet , 61 S.W.3d at
616

. To have an enforceable agreement under Texas Rule of Civil Procedure 11,
the a greement must be in “writing, signed an d filed with the papers as part of the record, or unless it be made in open court and entered of record .” Tex. R. Civ. P. 11. To satisfy Rule 11, there must be a written memorandum which is complete
within itself in every ma teri al detail, and which conta i n s all the essen tial elements of the agreement, so that the c ontract can be ascertained from the wr itings without resorting to oral testimony. Padilla v. LaFrance , 907 S.W.2d 454, 460 (Tex. 1995). The writing need not be in onl y one document. Id

. The f ollowing e lemen ts are required for the formation of a bindin g contract: (1) an offer, (2) acceptan ce in strict compliance with the terms of the offer, (3) a meeting of the minds, (4) each party’s consent to the term s, and (5 ) ex ecution and delivery of th e contract w ith t he intent that it be mutual and binding. Wal

- Mart Stores, Inc. v. Lopez , 93 S.W.3d 548, 555

– 56 (Tex. App.

— Houston [14th Dist.] 2002, no pet.). For an agreement to be enforceable, there must be a mee ting of t he

m inds with respect to its s u b ject matte r and essential terms. Id . at 556. The
determina tion of a meeting of the minds, and thu s offer and acceptance, is based on the objective standard of what the parties said and did

— and not on their subjecti ve
state of mind. Id . In determining m u tual assen t, th e court considers the
communications between the parties and the acts and circumsta nces surrounding
those communications. Id

.10

B. Background

The first trial between the parties was to determine whether the parti es ha d
entered into a Rule 11 s e ttlement a greem ent. A ppellee ’ s attorney s ent a settlement
demand letter to appellants . The o ffer of settlement made by appellee’s attorney
stated in pertinent part:

We hereby demand upon you for tender of the full amount o f t he available policy limits b e fore the e xpira tion of fourteen (14) days from your receipt of this demand. In exchange, we propose to fully release your insured for all claims and liens. . . . In the event this demand is not met by the expiratio n date, t his offer of settlement is aut o m atically r evoke d. Eleven days later, appellant’s insurer re sponded by letter to appellee and
stated: This letter will serve as our reconfirmation of the company’s agreem ent to tender the applicable per person Bodil y Injury pol icy limits in the amount of $ 30,000.00 in fu ll and final resolution of any and all claim s which your client may now or in the future possess as a result of this motor vehicle accident. If you will re call, this offer had been previously extended on Septe mbe r 11, 2013. Enclosed plea s e find a re lease . In addition, . . . the company is require d to secure a W

- 9 form with your t ax identification number. . . Upon receipt of the above, we will process the settlement draft. The meaning of the wor d “t ender ” wa s a contested issue in the fir s t trial. I t was undisputed that appellants did not send any mone y to appellee or relinquish

po ssession of any f

unds under circumstances that would allow appellee to acquire possession without special effort

. In th e jury ch arg e, the jury was asked : “ Do y o u find tha t [ap pellee ’ s] letter

. . . and [appellants ’ ] let ter . . . constituted an agreement whereby [appellee] would fully and finally settle his claims . . . in ex change for [appellants ’ ] tender of $30,000.00 bef

ore Decem b er 26, 2013 ? ” The jury charg e instructed that “ tender ”11

meant “ an un conditional offer to p ay

. A val id an d legal tender consists of the actual production of the funds and the tenderer must relinquish possession o f the
funds under such circumstance s as to e nable the person to whom it is t endered,

w ithou t special effort on his part[,] to acquire p ossession. ”

C. Analysis

A lthough appellants argued that “ tender ” did not mean actual pro duction of the funds, because th e jury was instructed that “ tender meant act ual production ” or relinquishm e n t of the f

unds, we cannot consider appellants ’ legal th eori es when reviewing the legal sufficiency of the e vidence of the jury ’ s findings. See Seger , 503 S.W.3d a t 407. Thus, b ecause it was undisputed that appella nts did n ot tender 5
the amount as deman d e d in the s ettle ment offer , appellants cannot demonstrate th at the evidence conclusively establishes all vital facts in support of the issue. S ee Dow Chem. Co.
, 46 S.W.3d at 241

. After considering and weighing all the ev iden c e in the first trial, we concl u d e t hat the jury ’ s f

i nding that there was no settlement agr eement entered into between the parties is not a gainst the great weight o f the preponderance of the
evidence. See Schear H

amp ton Drywall, LLC , 586, S.W.3d at 24 2. B ecause of the

way the jury was i ns t ructed on th e de f ini tion of tender and because there wa s no evidence that appellants ’ “ t endered ” t he amount demanded, the evidence was
fact ually sufficient to support the jury ’ s verdict

. We overrule appellants ’ thir d is s ue.

5 As that term was defined in t he jury charge

. B ecause we co nclude d t hat appellants faile d to preserve their a rgument with rega r d t o jury charge error, we do not analy ze or comment as to whether th e charg e given wa s proper.12 V. E XPERT W ITNESS T ESTIMONY

I n appe lla nts ’ sixth issue they contend that the trial court erred by allowing appellee ’ s expert witness to testify about certain topics. First a p pellants ar gue t ha t the trial court erred beca use it allowed the chiropractor t o testify regarding appellee ’ s po st traumatic stress disor der because he was not des ignated or qualified to testify about this issue. A ppellants also contend that appell ee failed to es ta b lish
the proper foundation f

or such testimony. S econd, a ppellants a r gue that the trial

court allow ed the chir opractor to testif y about bio

- mechanical engineer ing and causation issues without being properly qualified or designated

. Third , appellant s
cont en d tha t the trial court erred in allowing the chiropractor to testif y about appellee ’ s future medic al expenses because he was not properly qualified or designa ted.

A. General Legal Principles

“ Failure to designate a testifying expert and an expert ’ s alleged lack of qualifications are defect s of form on which an appellant mu s t objec t and obtain a ruling t o preserve error. ” Expro Americas , LLC v. Sanguine Gas Expl ., LLC , 351 S.W.3d 915, 919

– 20 (Tex. App.

— Houston [14th Dist.] 2 011, pet. denied) ; see als o Duncan

- Hubert v. Mitchell , 310 S.W.3d 92, 102 (Tex. App.

— Dallas 2010, pet

. denied)

. If there is no ruli ng on suc h obje ction s by the trial court, then the objection s are waived. Expro Americas , LLC , 3 51 S.W.3d at 920.

We review a trial court ’ s admissi on of expert witness testimo ny for an abuse
of discretion. See Gunn v. McC o y , 554 S. W.3d 645, 666 (Tex. 2 01 8) ; Sw. Energy
Prod. Co . v . Berry

- Helfand , 491 S.W.3d 699, 716 (Tex. 2016) . To reverse a trial

court ’ s judgment based on the admission of ev idence, we must find that the trial

court committed error and that the error was h a rmful. See Gunn , 554 S. W.3d a t
666 (citing Gee v. Liberty Mut. Fire Ins. Co ., 765 S.W.2d 39 4, 396 (Tex. 1989)13

( “ To obtain reversal of a judgment b ased upon error of the trial court in ad mission

or ex clusion of evidence, the following must be shown: (1) t h at the trial court did
in fact c ommit error; and (2) that the error was reasonably calcula te d to cause and

pro bably did cause re ndit ion of an impro per judgment. ” ) )

. “ Typically, a suc c essful challenge to a trial court ’ s evidentiary rulings requires the co m plaining party to
demonstrate th at the judgment turns on the particular evidence excluded or admitte d. ” D iscovery Op

. , Inc. v. BP Am. Prod. Co.
, 311 S.W.3d 140, 169 (Tex. App.

— Eastland 2010, pet. den ied ). A witness who is qualified as an expert b y knowle d ge , skill , experience,
trainin g , or education may testify in the form of an opinion or oth erwise if the expert ’ s scientific, technical, or other sp eci alized knowledge will help the tri er o f
fact to un derstand the evid ence or to determine a fact in issue. ” Tex. R . Evid. 702.

“ A dmissib il ity of an expert ’ s opinion hinges o n whether the expert ha s special knowledge concerning the matter on which his opinion is sought that will assist the
trier of fact. ” Moreno v. Ingram , 454 S .W.3d 18 6, 193 (Tex. App.

— Dalla s 2 014, no pet.).

B. Background

I n the second trial
, appellee called a chiropractor to testif y about appellee ’ s injuries. The chiropra ctor testified tha t he ha s been a licensed chir opractor for

a ppro xim ately sixteen years , that he had learned to treat pe opl e i nv olved in

“ traumatic accide nt s , ” including any type of musculoskeletal injury, brain

tr aumatic injuries particularly in the context of car accidents, and work injuries. The chiropractor testified t hat he could dia gnose and treat musculoskeletal injurie s and manipulate the spine to h el p a pa tie nt with tho se injuries

. He is further qualified as a state certified “ D esi gnated Doctor ” an d “ Impairment Evaluation Physician ” meaning that he is designated w ithin the Texas workers compensation14

system to help det e rmine “ the status and evaluati on ” for injured workers eligible
for workers compensation

. The chir opra ctor took a separate class and examination to qualify as a Designated Doctor and Impairment Eval ua ti on Physician. As a Designated Doctor an d Impairment E valuation Physician the ch ir op ra ct or examines injured employees to determine question s fro m their treat ing physicians regarding the extent of the ir disability or i mpairment

. The chiropractor performe d

an “ Impa irment Rati ng Evaluation ” on appellee in 2015 and prepared a report of
his f in dings from this evaluation . The r e p o r t was admitted into evidence without objection.

The chir o practor testified tha t in preparing his evaluation he reviewed appelle e ’ s medical records from diagnostic testing performed b y other doctors

. The chir o prac t o r testified that based on his review of app ellee ’ s medical records he
believed that appellee suffered injurie s to his spine and ribs , as well as trauma to his brain as a result of the collision

. He testified tha t appellee ’ s MRI showed that appellee ha d a “ bulge ” and “ prot rusion ” in two differ ent places in his ne ck and that these injuri es were the result of the collision because such injuries are typically
associated wit h whiplash experienced in a collision and because appe l l ee did not
have any prior medi ca l history of neck injury. The chir opractor testified tha t appellee had received cortical steroids injected into his neck to reduce the pain

a ppellee was experiencing f r o m the ne ck injur y

. When examined by the chiropractor
, appellee indicated that the i nj ectio ns helped to relieve some of th e pain he was experien cing

. The chir opractor testified that in addition to his work as a n Impairment
Evaluation Doctor he also has a clinical practice where he treats patients who are
i n jured

. He testified that if h e was appellee ’ s tr e ating doct or, assuming appellee

was in t he same condition at trial as he was on the day of the chiropractor’s15

examination, that appe llee would need “ cervical inj ections and additional physical
thera py t o go along with those injections. ” 6 The chir opractor testified that typical

treatment for app e llee ’ s injur ies require multiple injections over a long period of
time.

The chir opractor then testified that pain manag ement is something that is
done in his o ffice and that he is familiar with th e costs associated there with
because he review s the charg es ma de by his office and what is paid. When ask ed
about the cost s asso ciated with injectio ns and physical therapy, a ppellant s objected

. T he trial court sustain ed ap pellants ’ objection with regar d to his testimony about the costs of injections but o verru led appellan ts ’ objection with regard to the costs of physical therapy. The chiropractor te stified th at app ellee

w ould need between four and ten visits and the a verag e cost would be between $250

- $ 30 0 pe r visit . He t estified tha t ap p ellee would need “ [a]t least s ix to ten sessions of therapy ” based off the injection and more if he experiences a “ flare up of his cervical injury. ”

C. Analysis

A p pellants first ar g ue t hat the trial court abused its d iscretion in admitting the expert witness testimony becaus e appellee ’ s expert was never d esignated. Appellants refer to an o bjection filed in the tr ial court to appellee ’ s alleged fail ure to designate experts , but ther e is no indication t hat this object io n was ever ruled on by the trial cour t

. As a result, appe llants have failed to preserve this issue for
review

. See Expro Americas , LLC , 351 S.W.3d at 919

– 20 ; Duncan

- Hubert , 310
S.W.3d at 102

.

6 Appellants obj ect ed to th ese questions but d id not object t o a lack of quali fication. Instead, appellants objected to a lack of foundation
, which was overrul ed by the trial court.16

A ppellants next argue t hat t he chiropractor was never qual if ied to testi fy about post

- traumatic stress disorder or “ bi omechanical engineer ing and causation ”
issues. Assuming appellants have prese rved such arg uments , 7 appellants have not identified or argued how this testimony p robab ly caused the rendition o f an
im proper judgment

. See Te x. R. App. P. 44 .1 (a)(1); Nissan M otor Co . Ltd. v.
Arm strong , 145 S.W.3d 131 , 144 (Tex. 2004) ( “ Having found th e trial court er red in admitting [the evidence] . . . we must consider whether these erro rs require
reversal. Err oneou s admission of evidence requires reversal only if the error probably (though no t necessaril y) resulte d in an improper judgment. ” ) ; s ee also
State v. Ce ntral Express way Sign Assocs. , 302 S.W.3d 866, 870 (Tex. 2009 ). Due

t o lac k of any such argument or demo ns tration of harm
, ap pellants ha ve waived this issue on appe al.
Even assuming that the chiropractor ’ s testimony about appellee ’ s post

traum atic stres s disorder was erroneous , appellee testified at length about his post

traum atic stress disor der , detailin g how the collision had affected his life daily
, ho w he suff

ered from reocc urring visions of headlights coming at him and was
unable to drive
, and h ow he suffered from depression
, attempted suicide , and was
admitted into psych iatric care because of the aft er effects of th e collision

. Additionally, the chiropractor ’ s evaluation admitted into evidence without

7 A ppellants cite to two places in the record where the chiropra ctor te stified regarding ap pellee ’ s post

- tr aumatic stres s disorder. The first is during direct examinat ion to which appellants did not object

. T h e second is during cross

- examin ation and elicited by appell ant s

. Appellants also cite to their objections to the exper t witness f ile d in the trial court but have f a iled to show where this objection wa s submitted to the trial court or heard by the trial court. It is also not appar ent from the record that appellants obtained a “ running objection ” to the chiropra ctor ’ s testimony about ap pellee ’ s post

- tra umatic stress d is order

. A p pellants cite to only one place in t he record whe re the chiropra ctor testified regarding “ biomechanical en gine ering and causation ” issues

–– during cross

- examination . S u ch test imony was elicited by appellants. Ap pellants have not otherwise iden tified what other t estimony on this is sue was of fered , over objection, and harmful

.17

objection indicated that appell ee had seen a doc tor for psychiatric consultation and
the doctor had classified ap pelle e as experiencing “ extreme impairme nt

. . . because his impai rment levels preclude useful funct ioning with regard to activities of daily living, social functioning, concentration and ada ptation. ” B ecause other evidence was introduced regarding appellee ’ s post

- traumatic stress disorder,

app el lants have failed to show that the judgment turns on the c hir opractor ’ s testimony on this topic

. See Tex. Dep ’ t of Tra ns p. v

. Able
, 35 S.W.3d 608, 6 17 (Tex. 2000) ( “ This court ordinarily will not reverse a judgment for er ro neous rulings on admissi bility o f evidence when the evidence i n question is cumulative
and not controlling on a material issu e d ispositive to the case

. ” ); D iscovery Op

. , Inc. , 311 S .W.3d at 169

. Regarding the chir opractor ’ s testimony about fu ture medi cal e xpenses, appellants contend th at the chiropractor was not qualifie d to testify about such

expenses

. The ch iropractor testified that he treats and diagnos es patie nts with injuries
, pain management , and relie f an d is familiar with the costs associat ed
there with

. Within his office there i s a doctor that is a “ Pain Management Speci alist
, ” and the chiropractor is fami l iar with the procedures performed by the
Pain M anagement Specialist and the costs associate d therewith. The chir o pract or testified th at bas ed upon a rea sonable medical p ro bab ili ty that appellee ’ s physical injuries would require conti nued treatment in the future t o address numbness, tingling and pain, and that there is a probability tha t surgery may be need ed. B a sed

on this re co rd, we c annot conclude that the trial court ab used its discretion in determining th e that the chiropra ctor w as qu ali fied to opine on the medical cost or need of physical the rapy

. See Hernandez v. M oss , 538 S.W.3d 160, 1 7 0

– 71 (Te x. App.

— El Paso 2017, no pet.) (adm ission of chiropractor ’ s testimony a bo ut future medical expenses was not an a buse of discretion whe r e chiropractor testified as to18

training and experience and based conclusions on “ rea sonable medical probability ” ) ; Hayhoe v. Hene gar , 172 S.W.3d 642 , 644

– 45 (Tex. App.

—

Eastland 2005, no pet.).

We overrule appellants ’ sixth iss ue

. VI. L EGAL AND F ACTU AL S U FFI CIENCY IN THE S E COND T RI AL
In issue four, a ppellants argue that the evi dence is lega lly and factually
insuffi cient t o support the jury ’ s verdi ct on appel lee ’ s pas t lo st wage earning capacit y. Appellants contend that appell e e failed to submit evi dence i n compliance
with section 18.09 1 of the Texas Civil Practice and Remedies Code. In issue five, appellants argue that the evide nce is lega lly and factually insuffi cient to support
th e jury ’ s ve rd ict on appellee ’ s future medical expe nses

. Appellants conten d that
no evidence was offered as to future medical expense s . Appellants contend that to the exten t that a chir opra ctor testi fied regarding future medical expense s, the chiropractor was neithe r qualified no r properly designated as an expert witness.

A. Gener al Legal Principles

Whe n reviewing the legal sufficiency of the evidence, we consider the
evid ence in the light most favorable to the challenged finding a n d indul ge every reasonable inference th at would support it. City of Keller v. Wilson
, 168 S.W. 3d
80 2, 823 (Tex. 2005). We m ust credit favorable evidence if a reasonable factfinder
could and disr egard contrary ev idence unless a reasonable factfinder could not.
S ee id. at 827. We must determi ne whether the evidence at trial would ena b le
reasonable an d fair

- minded people to fin d the facts at issue. See id. The factfinder is the only judge of witness credibility and the weight to give to testimony.
See i d

. at 819.19

I n a factual sufficiency review
, we will set aside the verdict and remand for a
new trial if we conclude that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. Golden Eagle Archery,
Inc. v. Jackson , 11 6 S.W.3d 757, 761 (Tex. 2003) (c iting In re King ’ s Estate , 244 S.W.2d 660, 661 (Tex. 195 1) ). We will weigh the evidence supporting the verdict along with evidence contrary to the verdict. See id. at 761

– 62. However, the fact

finder remains t he sole judge of the credibility of witness es and th e weight to be given their testimony. Id. at 76 1. We must defer to the fact

- finder's determinations so long as those determinations are reasonable. See Sw. Bell Tel. Co. v. Garza , 164 S.W.3d 607, 625 ( Tex. 2004). We may not merely substitute o ur judgment for that

o f the fact

- finder. Golden Eagle Ar chery , 116 S.W.3d at 761.

B. Fu ture Me dical Expenses

To recover future medical expenses , a plaintiff must provide evidence showing a reasonable probability tha t the medical e xpe nses wi ll be incurred in th e future and the probabl e co st of such expenses. Gunn , 554 S.W.3d at 112. While expert testimony is preferred, n o precise evidence is required to support an award
for future medical costs

. Id

. It is within t he jury ’ s dis cretion to determine the

amoun t to awar d in future medical expe nses

. Id

. This standar d is not so vague that a reviewing court will uphold a jur y award whe n there is no evidence to support
the award. Id

. “ [T] he only requirement to support a verdict on t his issue is that
there b e evi de nce in the record of the reason able value of past medic al treatment
and to establi s h th e probabl e necessity of future medical treatment. ” Blankenship
v. Mirick , 984 S.W

. 2d 771, 778 (Tex. App.

— Waco 1 999, pet. de nied).

“ Dete rmination of the e x pense of fu tu re treatment is a matter for th e jury to
determine in t he exercise of their sound discretion under proper instructions fro m the court. ” Id

.20

Appellee testified that he still sees three doctor s ; one is a tre ating doctor, one is a psychologist , and on e i s a neurologist. Appellee test ified th at he is still b e ing treated for nerve damage to try to he lp ge t his strength back
, heada ches under
control , and pain level down. Cu rrently he is on medication
, but somet imes
receive s massage s to relieve symptoms. A p pellee attested th at he feels pain ev e ry day. A p pelle e did not submit documentation of medical expenses or testify about the costs incurred for his doctor visits, medic ation , or other medical needs. Appellee did not testi fy about how often he experien ce s “ flare up s. ” The chiropractor te stified th at app elle e w oul d n eed between four and ten visits for physical therapy and the average cost would be between $250

– $ 300 pe r visit . He

t estified tha t ap p ellee would need “ [a]t lea st s ix to ten sessions of ther ap y , ” and more if he experiences a “ flare up of his cervi cal injury. ” The jury awarded

app ellee $10,000 in future medical expenses.

Rev iewing the evidence in the light most favorable to the challenged fin d ing and indulging e very reasonable inference to s up port it
, appellee submitted legally
sufficient evidenc e to show that with a “ reasonable medic al probability ” appellee could expect future me dical care

. Appellants argue that we may no t consider the chirop ractor’s testimon y

. H owever , we have already decid ed that issue against appellants above. Thus, the evi dence is legally suf ficien t to support an award of future medical expenses.
Reviewing th e entire record considering both evidence in favor of and

con trary to the ch allenged finding
, the evidence in this c ase is factually insufficient to support the jur y ’ s award of $10,000 in future medical expenses

. While there was evidence of other potential medical exp enses that appellee might incur in the
future , t here was no evidence introduced regarding their re asona ble cost or whether
there was a rea sonable probabili ty that type of care would be required in the future

.21

See Ros enboom Mac h. & Tool, Inc. v. Machala
, 995 S.W. 2d 817, 828 (Tex. App.

— Houston [1st Dist. ] 1999, pet. denied) ( “ [T]o sustain an award of fu ture medical expenses, the pla intiff must present evidenc e to establish that in all reasonable probability, future me dic al ca re will be required and the reasonable cost
of that ca re. ” ). As a resul t, the ev idence i s factually insufficient to support the ju r y ’ s award of $10,000 in futur e medical expenses, but the evidence is factually
and legally sufficient to support an award of $3,000 to appellee in future medical

expenses

. See Tex. R. App. P. 46.3 ; see La rson v. Cactus Util . Co

. , 730 S.W.2d 640, 641 (Tex. 198 7) ( “If pa r t of a damage verdict la c ks sufficient e v identiary support, the proper course is to suggest a remitt itur of that part of the verdict. The party prevailing in the tria l court should be given the option of accepting the remittitur or having the ca se reman de d .” ) ; see also Matbon , Inc. v. Grie s , 288
S.W. 3d 471, 485 (Tex. App.

— Eastland 2009, no pet.) ( “ A court of appeals may

exerc ise it s power to suggest a remittitur when it determines there is i nsu fficient
evid ence to support a damage award, but find s that there is sufficient evidence to support a le sser award. ” ).
Appella nts ’ issue five is sustaine d. Concluding the evidence is sufficient to support an award of $ 3 ,000 in future medical care ex penses , w e suggest a

rem itt itur of $ 7,000 of the future medical care expenses
, modifying the award of damag es in the judgment from $512,859 .00 to $505,859.0 0. Tex. R. App. P. 46.3

. If appellee Kenon D. Murphy time ly files the remittitur w ith the clerk of this court within twenty days from the date of this opi nion
, we shall render an amended judgmen t mod i fy ing th e trial court ’ s judgment to ref lect an a ward of $505,859.00 in damages and affirm ing t he t rial cour t ’ s judgment as so modi fi ed

. Tex. R. App.
P . 4 3.2(b) , 46. 3

. If t he suggested remitt itur is not filed
, t he case will be r e ma nd ed
to the tr ial cou rt for f

urther pr oceedings limited to red etermination of future22

medical care expenses of Kenon D. Murphy

. See Larson , 730 S.W.2d at 641 ( prevailing party h a s option to accept r emit t it ur or hav e case rem and ed)

. C. Pas t Lost Wage Earning Capacity

“ Lost ea rning capa city is an assessmen t of what the p laintiff ’ s capa c it y to

earn a livelihood actually was and the extent to which that capacity was impaired by the i njury. ” Big Bird Tree Servs. v. G a llegos
, 365 S.W.3d 173, 1 78 (Tex. App.

— Dallas 2012 , pet. denied ). “ Lo ss o f past earning capa city is a plaintiff ’ s di minished ability to work during the perio d between the injury and the date of
trial. ” Hospad

ales v. Mc Coy , 513 S.W.3d 724, 742 (Tex . App.

— Houston [1st Dist.] 2017, no p et.). Proof of lost earning capa city is al ways uncertain and l eft largely to the jury ’ s discretion

. Id

. A pl aintiff must submit evidence sufficient to permit a jury to reasonably mea sure ea rning cap acity in monet ary t erms t o support an award of lost earning capacity

. Id

. In determini n g lost ea rning capacity
, non

e xclusive factors may be considered including e vidence of past earnin gs, the plaintiff ’ s stamina, efficie ncy , ability to work with pai n, and the pl aintiff ’ s work

life expectancy. Id

. A t trial, appellee ’ s wife testified that before th e collision
, appellee brough t home approximately $1,000 per week for “ about a week or two ” before the
collis i on

. S he testified that his wee kly pay was his “ take home ” pay because he was still in training

. Prior to that, appellee broug ht hom e about $600

– $ 800 per
week. P rior to his job at the time of the collision
, appellee had worked for another trucking company . Appellee ’ s wife testified t h at appellee made appr oximately $1
, 200

– $1
, 800 per week depending on the dist ance d riven. In another t rucking positi on appellee was paid b etween $ 1,000

– $2,000 per week , again depe nding on
the distance driven. Appellee ’ s w i fe t estified that before the coll ision that she and23

appellee had ambitions of owning their own co mpany with multiple trucks and that

ot hers in her fa mily had run the ir own t ruckin g businesses.
Appell ee testified that h e had a class A commercial drivers license, that he
had to take tests to become specially licensed an d pass a p hysical . Appellee als o had to pass a special b ackground che ck and trainin g to obtain cert ifications to drive
hazardous material s , as well as training on facility procedures and emergency procedures. Appell ee test i fied that he loved his job because of the “ freedom ” it provided him to move a round , be outside, and b e his own boss

. Appellee want ed
to b uy his own truck and start his own trucking business. Appellee testified that in the weeks prior to the col lis ion h i s “ take

- home ” pay was approximately $900 pe r week and that as hi s responsibili ties increased, so did h is pay. The l owest pay he

rec eived in his job prior to the collision was $600 and the most was over $900

. Appellee testified th at if he had been able to continue he would have been earning
betwee n $1,000

– $1,400 per w eek and if he had become an ow ner he c ould hav e made as much as $4,0 00 per week. Appel lee testified that he had not been able to
work for 226 weeks. Appellee testifie d that at $600 per week, he has lost wages in
the amount of $135,60 0; at $900 per week, he has lost $203,400.
Ap pellants cro ss

- examined appe llee a b out appel lee ’ s 2012 tax return. The tax return showed that appellee was paid approxi mately $1 4,000 in 2012 from the

tru cking company he was working for at the time of th e collision . The tax retur n showed that most of that income was reduced by “ lo sses ” from appel lee ’ s business
, and as a result, appellee ’ s adjusted gross income was $3,728. The 2012 tax return also showed that appell ee ’ s federal income tax liability for that year was $2 3 0

. Th e jury awarded appellee $8 7,859 in los s of earning capacit y incur red in the pa s t. Appellants argue tha t appellee faile d to introduce any ev ide nce in compliance with 18.091 (a) of the Texas Civ il P r actice & Rem edies Code . Section24

18.091(a) requires tha t a plaintiff seeking certain damages, such as loss of earnin g
capac ity, provi de evidence of the loss “ in the form of a net loss after re duction for income tax payments or unp aid tax liability pursuant to any federal income tax
law

. ” Tex . Civ. Prac. & Rem . Code § 18.091(a). However, appellan ts s ubmitted
evidence o f appel lee ’ s federal income tax liability for the year of the collision
showi ng that appellee was only subject to payment of $230 in federal income taxes that year. Appellee ’ s e vidence of his wages prior to the collision w as his “ take

home ” pay , both he a nd h is wife testified as to the amount that appellee brought
home from his wor k as a tr uck driver. Appellee and his wife also t estified to appellee ’ s ability to w ork both before and after the col lision.

Given the evidence that was introduced
, the jury c ould have reasonably presumed that appellee ’ s tax rate was on the low er side and that appellee ’ s evidence ref

lected his net pay after ta xes

. See Big Bird Tree Serv s. , 365 S.W.3d at 179 ; see al so Hospadales , 513 S.W.3d at 742 ( “ Pro of of loss of earning cap a city is always uncertain and is left l argel y to the discretion of the jury. ” ). The evidence presented by ap pellee was that his lost wa ge earning capacity was between $13 5,00 $205,000 while th e jury awarded only $87,895

. Credi ting favorable
evidence if re a sonable jurors could, and disregarding contrary evidence un less reasonable juror s could not, we concl ude that the evidence would enable
reasonable and fair

- minded p eople to award $87,895 in past lost earning capacit y damage s. See Hospad

ales , 513 S.W

. 3d a t 744

. Furthermore, considering and weighing all of the evidence, we conclude that the evidence is not so weak to be
cl early wrong and unjust. See id

. Thus, the evidence is legally a nd factually
sufficient to support the jury ’ s award for ap pellee ’ s p ast lost wage e arning capacity.

We overrule appe l lants ’ fourth i ssue.25 VII. C APACITY

In their se v enth and eig hth issu e s , a p pellant s con tend that the trial court did not have jurisdiction ov er the Estate of Jorge Mines “ sin ce there w as no probate
action ” an d An a Lisa Mines “ was n ever appoint ed or qualified by any Texas cou rt

to serve as a representative of the E s ta te of Jo r g e M ines. ” A p pe llant s a rgue that because appellee failed to serve the proper part y to the lawsuit , fil ing ag ains t and serving the “ perso n al representative ” of t he Estate of Jorge Mines, instead of Ana
in her individ ual capacity, that the judgm e nt rendere d by the trial co urt is void.
A p pellee contends that there is no dispu te that Ana is the survi ving spou se of the
dece dent, Ana is an heir at l aw of the decedent, and that Ana, through her counsel, appeared in this cause and represented the interest of t he dece den t

. A. Ge nera l Lega l Principles

In a survival a ction
, the parties seek a djudication of claims against the
de cedent for the alleged inju ries inflicted by the decedent upon the plaintiff. See Austin Nursing Ctr., Inc. v . Lova to , 171 S.W.3d 845, 85 0 ( Tex. 200 5 )

. “ The action survives agains t the liable person a n d the person’s le gal representa ti ves

. ” Tex.
Civ. P rac . & Rem . Code § 71.0 2 1 (b)

. “ It is well

- settle d that the estate of a
decedent is not a legal entity and may no t sue or be sued as such

. ” S up ak v. Zb o r il
, 56 S.W

. 3d 7 85, 792

– 93 (Tex. App.

— Houston [14th Dist.] 2001, no pe t. ) (citing
Pr ice v. Estate of An der

son , 52 2 S.W. 2d 690, 691 ( Tex. 1 975 ) ). A suit seeking to

e sta blish liability against a dece dent should or dina rily be instituted agains t t h e
per sonal r epresentative o r against the heirs or benef ici aries. Price , 522 S.W. 2d a t 691 ; Sup ak , 56 S.W.3d at 79 3. “ When no one has qualifie d as e xecutor or administrator of the estate of a deceased spouse, the surviving spo use, whether the
husband or w ife, as th e surviving partn er of the marital p artnershi p has power to26

sue and be sued for the r ecovery of communit y p roperty

. . . . ” Tex. Pro b. Cod e § 160

. 8
The community property subject to the sole or joint management, control, and disposition of a spo u se during marriage continues to be subject to the liabilities of that spouse on death. Tex. Est ates Code § 101.052 (a)

. Addit ionally, the int erest that the deceased spouse owned in any other nonexempt comm unity property passes to the deceased spouse ’ s heir s or devisees charged with the debts that were enforceable against the deceased spouse before de ath. Id. § 101.052( b).
Stated otherwise, com munity assets of an estate, although they may vest in the
survivi ng spouse and heirs upon the decedent's death, are h eld subject to the payment of community debts and subject to the right of a d uly appointed and qualified personal rep resenta tive to have po ssessi on and control under orders of the court during administrat ion. In re Estate of Herring , 983 S.W.2d 61, 63 (Te x

. App.

— Corpus Christi 1998, no pet.). Moreover, while under the jurisdictio n of the probate cou rt, all community p rop erty, i ncluding the half

- i nterest of the surviving spouse, is subject to administration and sale by the probate court as a part of the

es t a te of the deceased spouse. Id. The authority of the personal representati ve over the survivor ’ s one

- half of the co mmu nity pr operty in t he rep resentative ’ s possession, however, is limited to what is necess ary to satisfy the debts of the deceased spous e
pro p erly payable out of such community assets. Id. When there is no duly app ointed executor, the p roper parties are t he heirs o r benefici aries o f the estate. In re Estate of Whittington , 409 S.W.3d 666, 671 (Tex. App.

— Eastland 2013, no pet.) (citing R ooke v. Jenson , 838 S.W.2d 229, 230 (Tex.1992)). An heir, who is a person entitle d under the statutes o f descent and

8 At the time th i s la w suit was filed , th is provision of the Texas Probate Code was in effect. Effec tiv e January 1, 2014 , this provision was recodif ied in Tex a s Es tates Cod e section 45 3.003.27

distr ibu tion to a part of the e s tate of a decedent who dies intestate, includes the decedent’s surviving spouse. Tex. Estates Code § 22.0 15. Those who receive the property of the decedent as heirs, devisees, or legatees receive the property s ubject to payment o f t

he debt s of t

he decedent

. Id. § 101.051. However, if the property is
insufficient to sa

tisfy the debt, the creditor is not ent itled to hav e a personal judgment against the heir. Chadwick v. Watkins , 258 S.W.2d 19 4, 196

- 197 (Tex.
Civ. App.

—

Texarkana 1953 , n o writ)

. A lternatively, if there is no qualified personal representative of a deceased spouse’s estate, the surviving spouse, as the survi v ing partner of the marital partnership, may sue and be sued to recover co mmunity property. Tex. Prob. Code § 160

. 9 Ho wever, th is provision do es not affect the disposition of the deceased

spouse ’ s property. Id.

B. Background

A ppellee s ued app ellant “ Ana Lisa M ines, as Personal Repre se ntative of the
E st ate of Jorge Luis M ines. ” Ana , thro ugh counsel, f il ed an origin a l answ er on beha l f of “ Ana Lisa M ines, Personal Representative of the Estate of Jorge Luis
Mines ” asserting general and specific d eni als

. A na later filed a first amended

a nswer with a “ specific denial ” asser tin g that she ha d be en sued in the w ron g

c a pacit y

. 10 A n a t hen fil ed a motion to en force settlement agreement asking the
trial co urt to enforce the alleged agreement between the p ar ties and a motio n for partial summary ju d gment as the person al representative. A na filed a noti ce of rule
11 se ttl ement agr e ement sta ting “ C OMES NOW Presumpt ive Defend ant Ana Lisa Mines, identified as the Personal Representative of the Estate of Jorge L uis Min es

.

9 Effective January 1, 2014 , this provision was recodified in Texas Estates Code section 4 53.00 3

.

10 A ppellant asserted that she was sued in the wrong capacity in her first and se cond amended answer s , bu t the an swer s w ere not verified.28

. . . ” I n the third amended a nswer , Ana filed a “ verified specific d enial ” tha t she

w as su ed in th e w rong capacit y

. In her third amended answer sh e attested that she

“ is not liable in the capacity in which she has been sued and there is a def ect in the parties

. . . . she has been su ed in a capacity which does not e xist

. . . . She h as bee n

s ued as the pe rsonal repre s en tati ve of the Estate of Jor ge L uis Mines, and she is
not, no r has she ever been a representati ve of the Estate of Mr. Mines . .

. . ”

Ana also f

iled a motion to dismis s for want of ju risdiction arguing that “ [a]t
the ti me o f the filing of this lawsuit
, a nd t o t his dat e, there has been no administration open ed on the estate, and no person or entity has applied to be or
desi gnated as the personal r e presentative f or the es tate

. ” The motion was not supported by an affidav it but attached a reco rd from the H arris C o u nty Cle rk stating that t h e Clerk ’ s records “ do not indicate probate proceedings for [ Jorge
Luis Mines ] as of

” July 27, 2 016. L ater, Ana f i led a supplement to her motion to
dismiss and attached an a ffi d avit attes t ing t hat she has “ nev er been name d as an he ir or b eneficiary to the Estate of Jorge Luis M ines ” and that she is “ not aware of any court proceeding involving the Es tate of Jorge Luis M i nes ” other than the
l awsuit with appellee.

A fter trial, Ana as Per son al Rep resentative file d a motion to di sre gar d the j ury verdict again raisin g the issue of ca pacity. The trial court denied this motion.
Just over a month later
, b efore the judgmen t was rendered, a pp ellee moved for a
trial amendment to “ make it clea r t hat the Court ’ s Judgment is against [ ap pella nt]

as sur viving sp ouse, he ir at l aw of , a nd legal representative o f the Es t ate of Jorge Mines, deceased. ” The trial court granted this amen d ment . The final judgment states that it is against “ Defen dant ANA LIS A M INES , as surviving wif e of Jorge
Min es , a s h e ir at law of Jorge Mine s, an d a s legal represen tative of Jorge Mines

. . . . ” Ana as Personal Rep resentative filed a motion for new trial raising the29

capacity issue and asserting that t he amendment was too la te and the judgment is

vo id as a matter of l aw.
C. Ana l ysis

Trial amendm ents are “alterations in, or additions to, pleadings permitted to correct errors or supply o missions discovered du r ing the trial.” Fincher v. B & D Air Conditioning & Heating Co. , 816 S.W. 2d 509, 514 (Tex. App.

— Houston [1st
Dist. ] 1 991, wr it denied). Rule 66 an d 63 of the Texas Rules of Civil Procedure governs trial amendments. Rule 66 of the Texas Rules of Civil Proc e dure states in pertinent part: If evidence is objected to at the trial on the ground that it is not within the iss ues ma de b y the pleading . . . t he court may allow the pleadings to be amended and shall do so freely when the prese ntation of the merits of t

he action will be subserved thereby and the objecting party fails to sati sfy the court that the allowance of such ame ndm ent would prejudice h im in maintaining his action or defense on the merits. Tex. R. Civ. P. 66.

Rule 63 of th e Texas Rules of Civil Pr o cedure provides in pertinent part: Parties may amend their pleadings . . . by filing such pleas with the clerk at suc h t ime as not to operate as a surprise to the opposite party; provided, that any pleadings, responses or pleas of fered for filing within s e ven days of the date of trial or thereafter, or after such time as may be ordered by the judge under Rule 166, sha ll be file d only after leav e of the judge is obtained, which leave shall be granted by the judge unless there is a s howing that such filing w i ll operate as a surprise to the opposite party. Tex. R. Civ. P. 63.

It i s well established tha t a party may amend it s p lead ing after verdict but before judgment. See, e.g. , Greenhalgh v. Serv. Lloyds Ins. Co. , 787 S.W.2d 938,
94 0 (Tex. 1990); Ortale v. C i ty of Rowlett , 696 S.W.2d 640, 641 (Tex. App.

— Dallas 1985, writ ref’d n.r .e.) ( “ P ost

- verdict t rial amendments hav e b een all owed to make
the pleadings conform to the verdict in various situations.”). When a request to30

amend plea dings is made under Rule 66 or 63, a court must grant the trial amendment unless “(1) the opposing pa rty presents evidence of surprise or prej udi ce , or (2) the amendment asserts a new cause of action or defense, and thus is prejudicial on its face, and the opposing party objects to t he amendment.” CA Partners v. Spears , 274 S.W.3d 51, 70 (Tex. Civ. App.

— H ouston [14th Dist.] 20 08,
writ den’d ) (qu oti n g Stat e Bar of Tex. v. Kilpatrick , 874 S.W.2d 656, 658 (Tex.),
cert. denied , 512 U.S. 1236 (1994)). The burd en of showing surprise or pre j udice rests on the party resisting the amendment. Id.
T h ere are circumst ances where a trial am endment may not onl y b e prope r but
manda tory. See AON Prop s

. , Inc. v. Riveraine Corp. , No. 14

- 96

- 00229

- CV, 1999 WL 12739, at *18 (Tex. App.

— Houston [14th Dist.] Jan. 14, 1999, no pet.) (citing Chapin & Chapin, Inc. v. Texas Sand & Gra vel Co. , 844 S.W.2d 66 4, 665 (Tex. 1992))

. If the amendment is proc edural in nature and merely conforms the pleadings to the evidence presented, the amendment is mandatory and the t r ial court must grant the amendment

. Id. If, however, the amendment is s ubstantive in nature, and changes a party ’ s cause o f acti on or asser ts a new cause of action, the amendment is not mandatory and the trial court h as discretion to deny the amendment. Id. In such a case, an appellate court will not disturb the decision of a trial court to allo w or refuse a trial am endment unless there is a clear abuse of discretion. 11 Id.
T he Texas Supreme Court in Chapin held tha t the amendment

— adding a
verified de n ial

—

was mandatory because it was of a formal, procedural nature. 844
S.W .2d at 665. T he court described a proced u ra l chang e as one that “si mply

11 Our cou rts favor a liberal construction of the rule and uniformly hold that t rial amendments should be all owed whenever the interests of justice are served. See Clark v. Walker

- Kurth Lumber C o. , 689 S.W.2d 275, 280 ( Tex . App.

— Houston [1s t Dist.] 1985, writ ref’d n.r.e.). The test for abuse of disc retion is whether the trial court a cted without reference to any guiding rules or principles, or whether under the circumstances of the case , the tri al court's action was arb itr ary or unreasonabl e

. AON Props. , 1999 WL 1 2739, at *18 (citing Koslo w ’ s v. Mackie , 796 S.W.2d 700, 704 (Tex.1 990)). The reviewing court wi ll determine whether the trial court abused its discretion by examining the e ntire

re cord. Clark , 689 S.W.2d a t 2 80.31

conformed the pleadings to the evidence at trial” and does not change a “ single substantive issue for trial.” Id. Similarly, in Krishan v. Ramirez , the court
concluded that the amen dment “simpl y conforme d the pleadings and th e evide nce presented at trial.” 42 S.W.3d 205, 225 (Tex. App.

— Corpus Christi 2001, pet. denied). In Krishan
, the appellee sought leave t o amend his pleadings to clarify that
Ramirez was bringing suit in his cap acity as guard ian of t he minor who was he i r and

ass ignee. Id. The court found that the trial court properly granted leave to file the
amendment. Id. The present case

— correcting t h e name of the defendant from “Ana Lisa Mines, Personal Representative of the Estate of Jor ge Lu is Mines” to “Anna L is a Mines , as the survivin g wife of Jorge Luis Mines, as heir at law of Jorge Luis Mines, and as legal r epresentative of Jorge Luis Mines, d e ceased”

— is more in the nature of a procedural change, like Chapin and Kri shan , than a subs tanti ve change. In this

ca se, the amendment did no t change a single substantive issue for trial. The only change was formal and procedural: changing the nine or te n words appearing after
Ana ’ s name. In the original pleadings, a ppellee sued Ana as a represent ati ve of t he estate of Jorg e Luis Mines

—

he did not sue Ana in her individual capacity. This means that appellee will look to th e property of the estate if he wins, which includes the separate property of the deceased spo use as well as the com mun ity pro perty subject

to the so le or joint management of the deceased spouse. This does not include appellant’s separate property. A ppe l lee, however, incorrectly named appellant as the “personal representa tive of the estate of Jorge Luis Mines” w hen there was no personal r epresentativ e duly qualified.
T his error was corrected by the trial ame ndment. The trial amendment
clarified that appellant was still being sued as a representative of the estate

— no l onger as a personal re presentative, but r ath er as t he surviving spou se, heir at law
,32

and legal representative of the decedent

. None of the se capacities reach the surviving spouse’s s epara te property if a judgment is rendered against appellant.
Because , under the code, bein g sued as surviving sp ouse, h eir at law, and l egal representative of the decedent also means that appellee will look to the assets of Jorge Mines, not to t

h e sep arate property of Ana Mines, the trial amendment is more
in the natu re of a procedural cha nge

— not a substanti ve change. Accordingly, the amendment was mandatory
, and the trial court did not err in a llowing the
amendment. 12
Rule 301 of the Texas Rules o f Civil Procedure only requires that “[t]he judgment of the court shall co nform to the pleadings .” Tex. R. Civ. P. 301

. In th is

case under the se facts , the trial c ourt did not err in allowing appellee leave to make
a trial am endment to clarify that Ana Lis a Mines was being sued as the surviving spouse, heir at law, and legal rep resentative of the est ate of Jorge Luis M ine s. Ther efore, the judgme nt of the court confo rmed to the amended pleadings and was

proper.
We overrule appellants ’ s eventh and eig hth issu e s

. VIII. C ONCLUSION

Hav ing sustained appellant s ’ issue f ive in part , we reve rse th e p ortion of the
trial court ’ s judgment aw arding future medical care expenses. We affir m the
remainder of the trial cou rt ’ s judgment as challenged on appeal. Concluding the evidence is sufficient to support an award of $ 3 ,000 in future medical care

12 Even if the a mendment was substantive in nature, and therefore not mandatory, appellant s do not meet their burden of showing surprise or prejudice. Although Ana objected to the proposed trial amendmen t , the record does not show that she was prejudic e d or surprise d. To the contrary, the record is replete with evidence that she was wel l aware that she had been sue d i n the incorrect capacity. Moreover, here due process rights were n o t violated. Ana was se rve d with citation, m a de a general appearanc e, and was before the trial court at all times r elevant to this appeal.33

e xpenses , w e suggest a rem itt itur of $ 7,000 of the future medical care expenses
, modifyi ng the award of damages in the judgme nt from $512,859 .00 to $505,859.0 0. Tex. R. App. P. 46.3

. If appellee Kenon D. Murphy time ly files the
remittitur w ith the clerk o f this court within twenty days from the date of this opinion
, we shall render an amend ed judgmen t mod i fy ing th e trial court ’ s judgment to ref

lect an a ward of $505,859.00 in damages and affirm ing t he t rial

cour t ’ s judgment as so modi fi ed

. Tex. R. App. P . 4 3.2(b) , 46. 3

. If t he sugg ested
remitt itur is not filed
, the case will be r e ma nd ed to the tr ial cou rt for further

pr oceedin gs limited to red etermination of future medical care expenses of Kenon
D. Murphy

. See Larson , 730 S.W.2d at 641 ( prevailing party h as option to accept

r emit t it ur or hav e case rem and ed)

.

/s/ Ken Wise Justice

Panel consists of Chief Justice Christo p her and Justices Wise and Zimmerer

.