Affirmed in Part, 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 JORGE LUIS MINES, AND OLD AMERICAN MUTUAL FIRE 

INSURANCE COMPANY, Appellants

V.

KENON D. MURPHY, Appellee

On Appeal from the 152nd District Court

Harris County, Texas

Trial Court Cause No. 2013-66594

MEMORANDUM OPINION

Appellants Ana Lisa Mines, Personal Representative of the Estate of Jorge 

Luis Mines, and Old American County Mutual Fire Insurance Company appeal the 

jury verdicts in favor of appellee Kenon D. Murphy. In eight issues appellants 

assert that this court should reverse the trial court’s judgment. We affirm in part

and suggest remittitur in part. 
2

I. BACKGROUND

Appellee Kenon D. Murphy was injured in a motor vehicle collision when 

his tractor-trailer was struck head-on by a vehicle driven by Jorge Luis Mines. 

Jorge died from his injuries. Appellee sued appellant “Ana Lisa Mines, personal 

representative of the estate of Jorge Luis Mines” asserting claims of negligence, 

negligence per se, and gross negligence for the injuries he received from the

collision. 

After filing suit, appellee’s trial counsel sent a demand letter to appellants’

trial counsel detailing the injuries suffered by appellee in the collision and 

demanding that appellant Old American tender the insurance policy limits to settle 

appellee’s claims. The parties disagree about what happened next. Old American

contended that it accepted the offer of settlement. Appellee contended that Old 

American sent a counteroffer instead of an acceptance and failed to accept the offer 

by not “tendering” the amount demanded in the offer by the deadline. 

Old American filed a motion for enforcement of the settlement agreement 

and a motion for summary judgment on its claims for breach of the settlement 

agreement; both were denied by the trial court. Old American and appellee tried to 

a jury the issue of whether the parties entered into a settlement agreement. The 

jury returned a verdict in favor of appellee, finding that no settlement agreement 

was entered into between the parties. Because the jury found that there was no 

settlement agreement, the trial court conducted a second jury trial on liability and 

damages for appellee’s personal injury claims. The second jury returned a verdict 

in favor of appellee. This appeal followed. 
3

II. ENFORCEMENT AND SUMMARY JUDGMENT MOTIONS

In appellants’ first issue, they argue that the trial court “erred by failing to 

acknowledge and enforce a valid settlement agreement . . . and by proceeding to 

jury trials in this case.” The general rule is that a denial of a summary judgment 

cannot be reviewed on appeal. United Parcel Serv. v. Tasdemiroglu, 25 S.W.3d 

914, 916 (Tex. 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 cannot be reviewed on appeal. Id. (citing 

Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex. 1996)). The party’s 

remedy is to assign error to the trial court’s judgment ultimately rendered 

following trial on the merits. Id.

In the first issue, appellants are appealing the denial of their motions for 

summary judgment and motion for enforcement.

1

 The 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. JURY CHARGE

In appellants’ second issue, they argue that the trial court erred by 

submitting the definition of the word “tender” as proposed by appellee because “it 

1

In the first issue appellants do not explicitly state they are appealing the denial of the

summary judgment and enforcement motions. However, appellants frame the issue as one of the 

trial court committing error because it allowed the case to proceed to a jury trial. Appellants cite 

only to the clerk’s record, including the summary judgment and enforcement motions as well as 

the notice of rule 11 agreement. There are no citations to the evidence admitted at trial or any 

trial testimony. Appellants complain in issue one that “the Trial Court submitted the issue to a 

jury . . . [and] committed reversible error” and “[b]ecause of the settlement, neither of the trials 

that took place was necessary.” Appellants did not make a motion for directed verdict at any 

time during the first trial or object to the submission of the case to the jury. In their third issue, 

appellants contend that “there was legally insufficient evidence to support the jury’s verdict on 

Question 1 (settlement) . . . or the jury’s verdict was against the great weight and preponderance 

of the evidence.”
4

was defective and misleading when applied to the . . . demand letter.” Appellants

argue that the “definition was not in conformity with the evidence introduced 

during trial and was thus calculated to result in the rendition of an improper jury 

verdict.” Appellee contends that the definition was substantially correct and that 

appellants waived any error by failing to object. 

A. General Legal Principles

“A request by either party for any questions, definitions, or instructions shall 

be made separate and apart from such party’s objections to the court’s charge.”

Tex. R. Civ. P. 273. “A party objecting to a charge must point out distinctly the 

objectionable matter and the grounds for the objection. Any complaint as to a . . .

definition . . . is waived unless specifically included in the objections.” Tex. R. 

Civ. P. 274. “The rule creates a two-pronged test: objections to the charge must 

specify the error and the legal bases of the objection.” Meyers v. 8007 Burnet 

Holdings, LLC, 600 S.W.3d 412, 422 (Tex. App.—El Paso 2020, pet. denied). 

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

aware of the complaint, timely and plainly, and obtained a ruling.’” Ford Motor 

Co. v. Ledesma, 242 S.W.3d 32, 43 (Tex. 2007) (quoting State Dep’t of Highways 

& Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992)). 

B. Background

During the jury charge conference, the trial court presented the parties with 

its proposed charge. Old American objected to the charge and offered a written

instruction for the definition of “tender” to the trial court.2 Appellee also objected 

2 The trial court also refused two more instructions proffered by Old American for 

inclusion in the jury charge. Appellants argue that it was error for the trial court to refuse to 

include these instructions but do not argue how the failure to include these instructions was an 

abuse of discretion or provide any citation to authority. Appellants further fail to argue or 

demonstrate how the exclusion of these instructions probably caused the rendition of an
5

and offered a written instruction for the definition of “tender.” The trial court

refused to include either appellee’s or Old American’s proposed definitions of 

“tender” and concluded the jury charge conference. The next morning prior to 

reading the charge to the jury, the trial court decided that it would include 

appellee’s definition of “tender” in the charge after reviewing the cases submitted 

by the parties.3 Appellants’ counsel requested additional time to discuss the trial 

court’s decision, but the trial court told him it was unnecessary. There were no

further objections or discussion about the jury charge. The trial court then read the 

charge to the jury. 

C. Analysis 

Here, while the trial court was fully aware of appellants’ requested 

definition, appellants did not object to the inclusion of the definition provided by 

appellee.

4

 See Tex. R. Civ. P. 273, 274; see 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, the pretrial proposed charges, standing alone, did not 

apprise the trial judge of the purported 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 purported errors.”); Meyers, 600 S.W.3d at 423 (“Had 

counsel explained why its suggested charge more closely followed the statute, we 

might view the situation differently.”). Old American failed to object to the 

inclusion of appellee’s definition of tender and alert the trial court as to why it was 

improper judgment or probably prevented the appellant from properly presenting its case to this 

court. See Tex. R. App. P. 44.1; Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 

851, 856 (Tex. 2009). Therefore, any argument that the trial court erred in refusing these 

instructions has been waived. See Tex. R. App. P. 38.1(h). 

3 The cases submitted and briefing, if any, are not part of the record on appeal. 

4 Appellant states “[o]ver the objection of Intervenor Old American . . .” but does not 

point to where such an objection was made. No such objection appears in the record. 
6

erroneous or why its definition was a more accurate statement of the law in this 

case. See Meyers, 600 S.W.3d at 423. On appeal appellants argue that the 

definition submitted was not an accurate statement of the law because in certain 

circumstances “tender” does not mean the actual production of funds and cites to 

cases supporting that contention. However, the record does not reflect that such an 

argument was made to the trial court so as to allow the trial court to correct any 

error in the charge prior to reading the charge to the jury. The proposed definition 

provided by appellant did not apprise the trial court of the purported problems with 

the charge that appellants now assert on appeal. See Cruz v. Andrews Restoration, 

Inc., 364 S.W.3d 817, 829 (Tex. 2012) (“Our procedural rules require the lawyers 

to tell the court about such errors before the charge is formally submitted to a 

jury.”); Ledesma, 242 S.W.3d at 43–44 (concluding jury charge error preserved 

where “[t]he objection, proposed question and instruction, and supporting 

authorities provided the trial court with a plain objection identifying the error in the 

charge that we recognize today, ‘with sufficient specificity to make the trial court 

aware of the complaint.’” (quoting Tex. R. App. P. 33.1(a)(1)(A)); Meyers, 600 

S.W.3d at 423 (“But leaving the task of discerning the differences between the two 

forms of the questions to the trial court simply asks too much.”). Thus, we agree 

with appellee that appellants have not preserved their complaint of jury charge 

error with regard to the definition 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 prior discussion was not on the record because it occurred

during the informal jury charge conference. While this may be the case, Old 

American did not preserve the error that it now asserts on appeal because we 

cannot ascertain from the record whether the arguments made on appeal were 
7

made to the trial court prior to the charge being read to the jury. See Tex. R. App. 

P. 33.1(a)(1)(A); Cruz, 364 S.W.3d at 831 (“Protech can complain on appeal only 

if it made the trial court aware, timely and plainly, of the purported problem and 

obtained a ruling.”). The rules require that prior to presenting an error to the 

appellate court, the party must first give the trial court the opportunity to hear the 

argument and correct the alleged error. See Cruz, 364 S.W.3d at 831. 

We overrule appellants’ second issue. 

IV. LEGAL AND FACTUAL SUFFICIENCY IN THE FIRST TRIAL

In appellants’ third issue, appellants argue that the evidence is “legally 

insufficient to support the jury’s verdict” on the settlement agreement in the first 

trial, or “the jury’s verdict was against the great weight and preponderance of the

evidence.”

A. General Legal Principles

When reviewing the legal sufficiency of the evidence, we consider the 

evidence in the light most favorable to the challenged finding and indulge every 

reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 

802, 823 (Tex. 2005). We must credit favorable evidence if a reasonable factfinder 

could and disregard contrary evidence unless a reasonable factfinder could 

not. See id. at 827. We must determine whether the evidence at trial would enable 

reasonable and fair-minded people to find 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 sufficiency relative to an adverse finding on which it 

had the burden of proof must demonstrate that the evidence conclusively

establishes all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 
8

S.W.3d 237, 241 (Tex. 2001) (per curiam). We review the entire record to 

determine if the contrary proposition is established as a matter of law only if there 

is no evidence to support the judgment. See id. Anything more than a scintilla of 

evidence is legally sufficient to support the judgment. See Wilson, 168 S.W.3d at

822. The final 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 credibility and the weight to give 

witnesses’ testimony. Id. at 819. 

“Our review is restricted to the jury charge as submitted when there was no 

objection to the instruction.” Seger v. Yorkshire Ins. Co., Ltd., 503 S.W.3d 388, 

407 (Tex. 2016). “Even if another legal theory was argued to the jury and

explained by the lawyers in argument, we are bound by the instructions given to 

the jury and presume that the jury followed those instruction.” Id. (citing 

Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 861–62 (Tex. 

2009)). 

When reviewing a challenge to the factual sufficiency of the evidence, we 

examine the entire record, considering both the evidence in favor of, and contrary 

to, the challenged finding. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07 

(Tex. 1998). When a party attacks the factual sufficiency 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 preponderance of the evidence. Schear Hampton Drywall, LLC 

v. Founders Commercial, Ltd., 586 S.W.3d 80 (Tex. App.—Houston [14th Dist.] 

2019, no pet.) (citing Dow Chem. Co., 46 S.W.3d at 242). The trier of fact stands 

as the sole judge of the credibility of the witnesses and the weight to be given to 

their testimony. GTE Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599, 615–16 

(Tex. App.—Houston [14th Dist.] 2001, pet. denied). We may not substitute our 
9

own judgment for that of the trier of fact, even if we would reach a different 

answer on the evidence. Mar. Overseas Corp., 971 S.W.2d at 407. It takes far less 

evidence to 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 agreement must be in “writing, signed and 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 material detail, and which contains all the essential elements 

of the agreement, so that the contract can be ascertained from the writings without 

resorting to oral testimony. Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex. 

1995). The writing need not be in only one document. Id. 

The following elements are required for the formation of a binding contract: 

(1) an offer, (2) acceptance in strict compliance with the terms of the offer, (3) a 

meeting of the minds, (4) each party’s consent to the terms, and (5) execution and 

delivery of the contract with the 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 meeting of the 

minds with respect to its subject matter and essential terms. Id. at 556. The 

determination of a meeting of the minds, and thus offer and acceptance, is based on 

the objective standard of what the parties said and did—and not on their subjective 

state of mind. Id. In determining mutual assent, the court considers the 

communications between the parties and the acts and circumstances surrounding 

those communications. Id.
10

B. Background 

The first trial between the parties was to determine whether the parties had 

entered into a Rule 11 settlement agreement. Appellee’s attorney sent a settlement

demand letter to appellants. The offer of settlement made by appellee’s attorney 

stated in pertinent part:

We hereby demand upon you for tender of the full amount of the 

available policy limits before the expiration 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 expiration date, this offer of settlement is 

automatically revoked.

Eleven days later, appellant’s insurer responded by letter to appellee and 

stated: 

This letter will serve as our reconfirmation of the company’s 

agreement to tender the applicable per person Bodily Injury policy 

limits in the amount of $30,000.00 in full and final resolution of any 

and all claims which your client may now or in the future possess as a 

result of this motor vehicle accident. If you will recall, this offer had 

been previously extended on September 11, 2013. 

Enclosed please find a release. In addition, . . . the company is 

required to secure a W-9 form with your tax identification number. . . 

Upon receipt of the above, we will process the settlement draft.

The meaning of the word “tender” was a contested issue in the first trial. It was

undisputed that appellants did not send any money to appellee or relinquish 

possession of any funds under circumstances that would allow appellee to acquire 

possession without special effort. 

In the jury charge, the jury was asked: “Do you find that [appellee’s] letter

. . . and [appellants’] letter . . . constituted an agreement whereby [appellee] would 

fully and finally settle his claims . . . in exchange for [appellants’] tender of 

$30,000.00 before December 26, 2013?” The jury charge instructed that “tender”
11

meant “an unconditional offer to pay. A valid and legal tender consists of the 

actual production of the funds and the tenderer must relinquish possession of the 

funds under such circumstances as to enable the person to whom it is tendered,

without special effort on his part[,] to acquire possession.” 

C. Analysis 

Although appellants argued that “tender” did not mean actual production of 

the funds, because the jury was instructed that “tender meant actual production” or 

relinquishment of the funds, we cannot consider appellants’ legal theories when 

reviewing the legal sufficiency of the evidence of the jury’s findings. See Seger, 

503 S.W.3d at 407. Thus, because it was undisputed that appellants did not tender5

the amount as demanded in the settlement offer, appellants cannot demonstrate that 

the evidence conclusively establishes all vital facts in support of the issue. See

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

After considering and weighing all the evidence in the first trial, we 

conclude that the jury’s finding that there was no settlement agreement entered into 

between the parties is not against the great weight of the preponderance of the 

evidence. See Schear Hampton Drywall, LLC, 586, S.W.3d at 242. Because of the 

way the jury was instructed on the definition of tender and because there was no 

evidence that appellants’ “tendered” the amount demanded, the evidence was 

factually sufficient to support the jury’s verdict. 

We overrule appellants’ third issue.

5 As that term was defined in the jury charge. Because we concluded that appellants 

failed to preserve their argument with regard to jury charge error, we do not analyze or comment

as to whether the charge given was proper.
12

V. EXPERT WITNESS TESTIMONY

In appellants’ sixth issue they contend that the trial court erred by allowing 

appellee’s expert witness to testify about certain topics. First appellants argue that 

the trial court erred because it allowed the chiropractor to testify regarding 

appellee’s post traumatic stress disorder because he was not designated or qualified 

to testify about this issue. Appellants also contend that appellee failed to establish

the proper foundation for such testimony. Second, appellants argue that the trial 

court allowed the chiropractor to testify about bio-mechanical engineering and 

causation issues without being properly qualified or designated. Third, appellants 

contend that the trial court erred in allowing the chiropractor to testify about 

appellee’s future medical expenses because he was not properly qualified or 

designated. 

A. General Legal Principles

“Failure to designate a testifying expert and an expert’s alleged lack of 

qualifications are defects of form on which an appellant must object and obtain a 

ruling to preserve error.” Expro Americas, LLC v. Sanguine Gas Expl., LLC, 351 

S.W.3d 915, 919–20 (Tex. App.—Houston [14th Dist.] 2011, pet. denied); see also 

Duncan-Hubert v. Mitchell, 310 S.W.3d 92, 102 (Tex. App.—Dallas 2010, pet.

denied). If there is no ruling on such objections by the trial court, then the 

objections are waived. Expro Americas, LLC, 351 S.W.3d at 920. 

We review a trial court’s admission of expert witness testimony for an abuse 

of discretion. See Gunn v. McCoy, 554 S.W.3d 645, 666 (Tex. 2018); 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 evidence, we must find that the trial 

court committed error and that the error was harmful. See Gunn, 554 S.W.3d at

666 (citing Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989)
13

(“To obtain reversal of a judgment based upon error of the trial court in admission 

or exclusion of evidence, the following must be shown: (1) that the trial court did 

in fact commit error; and (2) that the error was reasonably calculated to cause and 

probably did cause rendition of an improper judgment.”)). “Typically, a successful 

challenge to a trial court’s evidentiary rulings requires the complaining party to 

demonstrate that the judgment turns on the particular evidence excluded or 

admitted.” Discovery Op., Inc. v. BP Am. Prod. Co., 311 S.W.3d 140, 169 (Tex. 

App.—Eastland 2010, pet. denied).

A witness who is qualified as an expert by knowledge, skill, experience, 

training, or education may testify in the form of an opinion or otherwise if the 

expert’s scientific, technical, or other specialized knowledge will help the trier of 

fact to understand the evidence or to determine a fact in issue.” Tex. R. Evid. 702. 

“Admissibility of an expert’s opinion hinges on whether the expert has 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 186, 193 (Tex. App.—Dallas 2014, 

no pet.).

B. Background 

In the second trial, appellee called a chiropractor to testify about appellee’s 

injuries. The chiropractor testified that he has been a licensed chiropractor for 

approximately sixteen years, that he had learned to treat people involved in 

“traumatic accidents,” including any type of musculoskeletal injury, braintraumatic injuries particularly in the context of car accidents, and work injuries.

The chiropractor testified that he could diagnose and treat musculoskeletal injuries

and manipulate the spine to help a patient with those injuries. He is further 

qualified as a state certified “Designated Doctor” and “Impairment Evaluation

Physician” meaning that he is designated within the Texas workers compensation 
14

system to help determine “the status and evaluation” for injured workers eligible 

for workers compensation. The chiropractor took a separate class and examination 

to qualify as a Designated Doctor and Impairment Evaluation Physician. As a

Designated Doctor and Impairment Evaluation Physician the chiropractor 

examines injured employees to determine questions from their treating physicians 

regarding the extent of their disability or impairment. The chiropractor performed 

an “Impairment Rating Evaluation” on appellee in 2015 and prepared a report of 

his findings from this evaluation. The report was admitted into evidence without

objection. 

The chiropractor testified that in preparing his evaluation he reviewed 

appellee’s medical records from diagnostic testing performed by other doctors. 

The chiropractor testified that based on his review of appellee’s medical records he 

believed that appellee suffered injuries to his spine and ribs, as well as trauma to 

his brain as a result of the collision. He testified that appellee’s MRI showed that 

appellee had a “bulge” and “protrusion” in two different places in his neck and that 

these injuries were the result of the collision because such injuries are typically 

associated with whiplash experienced in a collision and because appellee did not 

have any prior medical history of neck injury. The chiropractor testified that

appellee had received cortical steroids injected into his neck to reduce the pain 

appellee was experiencing from the neck injury. When examined by the 

chiropractor, appellee indicated that the injections helped to relieve some of the 

pain he was experiencing. 

The chiropractor testified that in addition to his work as an Impairment

Evaluation Doctor he also has a clinical practice where he treats patients who are 

injured. He testified that if he was appellee’s treating doctor, assuming appellee 

was in the same condition at trial as he was on the day of the chiropractor’s
15

examination, that appellee would need “cervical injections and additional physical 

therapy to go along with those injections.”

6 The chiropractor testified that typical 

treatment for appellee’s injuries require multiple injections over a long period of 

time. 

The chiropractor then testified that pain management is something that is 

done in his office and that he is familiar with the costs associated therewith 

because he reviews the charges made by his office and what is paid. When asked 

about the costs associated with injections and physical therapy, appellants 

objected. The trial court sustained appellants’ objection with regard to his 

testimony about the costs of injections but overruled appellants’ objection with 

regard to the costs of physical therapy. The chiropractor testified that appellee 

would need between four and ten visits and the average cost would be between 

$250-$300 per visit. He testified that appellee would need “[a]t least six to ten 

sessions of therapy” based off the injection and more if he experiences a “flare up 

of his cervical injury.” 

C. Analysis 

Appellants first argue that the trial court abused its discretion in admitting 

the expert witness testimony because appellee’s expert was never designated. 

Appellants refer to an objection filed in the trial court to appellee’s alleged failure 

to designate experts, but there is no indication that this objection was ever ruled on 

by the trial court. As a result, appellants 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 objected to these questions but did not object to a lack of qualification. 

Instead, appellants objected to a lack of foundation, which was overruled by the trial court. 
16

Appellants next argue that the chiropractor was never qualified to testify 

about post-traumatic stress disorder or “biomechanical engineering and causation”

issues. Assuming appellants have preserved such arguments,

7

appellants have not 

identified or argued how this testimony probably caused the rendition of an 

improper judgment. See Tex. R. App. P. 44.1(a)(1); Nissan Motor Co. Ltd. v. 

Armstrong, 145 S.W.3d 131, 144 (Tex. 2004) (“Having found the trial court erred 

in admitting [the evidence] . . . we must consider whether these errors require

reversal. Erroneous admission of evidence requires reversal only if the error 

probably (though not necessarily) resulted in an improper judgment.”); see also

State v. Central Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009). Due 

to lack of any such argument or demonstration of harm, appellants have waived 

this issue on appeal. 

Even assuming that the chiropractor’s testimony about appellee’s posttraumatic stress disorder was erroneous, appellee testified at length about his posttraumatic stress disorder, detailing how the collision had affected his life daily, 

how he suffered from reoccurring visions of headlights coming at him and was 

unable to drive, and how he suffered from depression, attempted suicide, and was 

admitted into psychiatric care because of the aftereffects of the collision.

Additionally, the chiropractor’s evaluation admitted into evidence without 

7 Appellants cite to two places in the record where the chiropractor testified regarding

appellee’s post-traumatic stress disorder. The first is during direct examination to which 

appellants did not object. The second is during cross-examination and elicited by appellants. 

Appellants also cite to their objections to the expert witness filed in the trial court but have failed 

to show where this objection was submitted to the trial court or heard by the trial court. It is also 

not apparent from the record that appellants obtained a “running objection” to the chiropractor’s 

testimony about appellee’s post-traumatic stress disorder. Appellants cite to only one place in 

the record where the chiropractor testified regarding “biomechanical engineering and causation”

issues––during cross-examination. Such testimony was elicited by appellants. Appellants have 

not otherwise identified what other testimony on this issue was offered, over objection, and 

harmful.
17

objection indicated that appellee had seen a doctor for psychiatric consultation and

the doctor had classified appellee as experiencing “extreme impairment . . . 

because his impairment levels preclude useful functioning with regard to activities 

of daily living, social functioning, concentration and adaptation.” Because other 

evidence was introduced regarding appellee’s post-traumatic stress disorder, 

appellants have failed to show that the judgment turns on the chiropractor’s 

testimony on this topic. See Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 617 

(Tex. 2000) (“This court ordinarily will not reverse a judgment for erroneous 

rulings on admissibility of evidence when the evidence in question is cumulative 

and not controlling on a material issue dispositive to the case.”); Discovery Op., 

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

Regarding the chiropractor’s testimony about future medical expenses, 

appellants contend that the chiropractor was not qualified to testify about such 

expenses. The chiropractor testified that he treats and diagnoses patients with 

injuries, pain management, and relief and is familiar with the costs associated 

therewith. Within his office there is a doctor that is a “Pain Management 

Specialist,” and the chiropractor is familiar with the procedures performed by the 

Pain Management Specialist and the costs associated therewith. The chiropractor 

testified that based upon a reasonable medical probability that appellee’s physical 

injuries would require continued treatment in the future to address numbness, 

tingling and pain, and that there is a probability that surgery may be needed. Based 

on this record, we cannot conclude that the trial court abused its discretion in 

determining the that the chiropractor was qualified to opine on the medical cost or 

need of physical therapy. See Hernandez v. Moss, 538 S.W.3d 160, 170–71 (Tex. 

App.—El Paso 2017, no pet.) (admission of chiropractor’s testimony about future 

medical expenses was not an abuse of discretion where chiropractor testified as to 
18

training and experience and based conclusions on “reasonable medical 

probability”); Hayhoe v. Henegar, 172 S.W.3d 642, 644–45 (Tex. App.—Eastland

2005, no pet.). 

We overrule appellants’ sixth issue. 

VI. LEGAL AND FACTUAL SUFFICIENCY IN THE SECOND TRIAL

In issue four, appellants argue that the evidence is legally and factually 

insufficient to support the jury’s verdict on appellee’s past lost wage earning 

capacity. Appellants contend that appellee failed to submit evidence in compliance 

with section 18.091 of the Texas Civil Practice and Remedies Code. In issue five, 

appellants argue that the evidence is legally and factually insufficient to support 

the jury’s verdict on appellee’s future medical expenses. Appellants contend that 

no evidence was offered as to future medical expenses. Appellants contend that to 

the extent that a chiropractor testified regarding future medical expenses, the 

chiropractor was neither qualified nor properly designated as an expert witness.

A. General Legal Principles

When reviewing the legal sufficiency of the evidence, we consider the 

evidence in the light most favorable to the challenged finding and indulge every 

reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 

802, 823 (Tex. 2005). We must credit favorable evidence if a reasonable factfinder 

could and disregard contrary evidence unless a reasonable factfinder could not.

See id. at 827. We must determine whether the evidence at trial would enable 

reasonable and fair-minded people to find 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.
19

In 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, 116 S.W.3d 757, 761 (Tex. 2003) (citing In re King’s Estate, 244 

S.W.2d 660, 661 (Tex. 1951)). We will weigh the evidence supporting the verdict 

along with evidence contrary to the verdict. See id. at 761–62. However, the factfinder remains the sole judge of the credibility of witnesses and the weight to be 

given their testimony. Id. at 761. 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 our judgment for that 

of the fact-finder. Golden Eagle Archery, 116 S.W.3d at 761.

B. Future Medical Expenses

To recover future medical expenses, a plaintiff must provide evidence 

showing a reasonable probability that the medical expenses will be incurred in the

future and the probable cost of such expenses. Gunn, 554 S.W.3d at 112. While 

expert testimony is preferred, no precise evidence is required to support an award 

for future medical costs. Id. It is within the jury’s discretion to determine the 

amount to award in future medical expenses. Id. This standard is not so vague that 

a reviewing court will uphold a jury award when there is no evidence to support 

the award. Id. “[T]he only requirement to support a verdict on this issue is that 

there be evidence in the record of the reasonable value of past medical treatment 

and to establish the probable necessity of future medical treatment.” Blankenship 

v. Mirick, 984 S.W.2d 771, 778 (Tex. App.—Waco 1999, pet. denied). 

“Determination of the expense of future treatment is a matter for the jury to 

determine in the exercise of their sound discretion under proper instructions from 

the court.” Id. 
20

Appellee testified that he still sees three doctors; one is a treating doctor, one 

is a psychologist, and one is a neurologist. Appellee testified that he is still being 

treated for nerve damage to try to help get his strength back, headaches under 

control, and pain level down. Currently he is on medication, but sometimes 

receives massages to relieve symptoms. Appellee attested that he feels pain every 

day. Appellee did not submit documentation of medical expenses or testify about 

the costs incurred for his doctor visits, medication, or other medical needs. 

Appellee did not testify about how often he experiences “flare ups.” The 

chiropractor testified that appellee would need between four and ten visits for 

physical therapy and the average cost would be between $250–$300 per visit. He 

testified that appellee would need “[a]t least six to ten sessions of therapy,” and 

more if he experiences a “flare up of his cervical injury.” The jury awarded 

appellee $10,000 in future medical expenses. 

Reviewing the evidence in the light most favorable to the challenged finding

and indulging every reasonable inference to support it, appellee submitted legally 

sufficient evidence to show that with a “reasonable medical probability” appellee 

could expect future medical care. Appellants argue that we may not consider the 

chiropractor’s testimony. However, we have already decided that issue against 

appellants above. Thus, the evidence is legally sufficient to support an award of 

future medical expenses.

Reviewing the entire record considering both evidence in favor of and 

contrary to the challenged finding, the evidence in this case is factually insufficient 

to support the jury’s award of $10,000 in future medical expenses. While there 

was evidence of other potential medical expenses that appellee might incur in the 

future, there was no evidence introduced regarding their reasonable cost or whether 

there was a reasonable probability that type of care would be required in the future. 
21

See Rosenboom Mach. & Tool, Inc. v. Machala, 995 S.W.2d 817, 828 (Tex. 

App.—Houston [1st Dist.] 1999, pet. denied) (“[T]o sustain an award of future 

medical expenses, the plaintiff must present evidence to establish that in all 

reasonable probability, future medical care will be required and the reasonable cost

of that care.”). As a result, the evidence is factually insufficient to support the 

jury’s award of $10,000 in future 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 Larson v. Cactus Util. Co., 730 S.W.2d 

640, 641 (Tex. 1987) (“If part of a damage verdict lacks sufficient evidentiary 

support, the proper course is to suggest a remittitur of that part of the verdict. The 

party prevailing in the trial court should be given the option of accepting the 

remittitur or having the case remanded.”); see also Matbon, Inc. v. Gries, 288

S.W.3d 471, 485 (Tex. App.—Eastland 2009, no pet.) (“A court of appeals may 

exercise its power to suggest a remittitur when it determines there is insufficient

evidence to support a damage award, but finds that there is sufficient evidence to 

support a lesser award.”). 

Appellants’ issue five is sustained. Concluding the evidence is sufficient to 

support an award of $3,000 in future medical care expenses, we suggest a 

remittitur of $7,000 of the future medical care expenses, modifying the award of 

damages in the judgment from $512,859.00 to $505,859.00. Tex. R. App. P. 46.3. 

If appellee Kenon D. Murphy timely files the remittitur with the clerk of this court

within twenty days from the date of this opinion, we shall render an amended 

judgment modifying the trial court’s judgment to reflect an award of $505,859.00 

in damages and affirming the trial court’s judgment as so modified. Tex. R. App.

P. 43.2(b), 46.3. If the suggested remittitur is not filed, the case will be remanded

to the trial court for further proceedings limited to redetermination of future 
22

medical care expenses of Kenon D. Murphy. See Larson, 730 S.W.2d at 641 

(prevailing party has option to accept remittitur or have case remanded). 

C. Past Lost Wage Earning Capacity 

“Lost earning capacity is an assessment of what the plaintiff’s capacity to 

earn a livelihood actually was and the extent to which that capacity was impaired

by the injury.” Big Bird Tree Servs. v. Gallegos, 365 S.W.3d 173, 178 (Tex. 

App.—Dallas 2012, pet. denied). “Loss of past earning capacity is a plaintiff’s 

diminished ability to work during the period between the injury and the date of 

trial.” Hospadales v. McCoy, 513 S.W.3d 724, 742 (Tex. App.—Houston [1st 

Dist.] 2017, no pet.). Proof of lost earning capacity is always uncertain and left 

largely to the jury’s discretion. Id. A plaintiff must submit evidence sufficient to 

permit a jury to reasonably measure earning capacity in monetary terms to support 

an award of lost earning capacity. Id. In determining lost earning capacity, nonexclusive factors may be considered including evidence of past earnings, the 

plaintiff’s stamina, efficiency, ability to work with pain, and the plaintiff’s worklife expectancy. Id. 

At trial, appellee’s wife testified that before the collision, appellee brought 

home approximately $1,000 per week for “about a week or two” before the 

collision. She testified that his weekly pay was his “take home” pay because he 

was still in training. Prior to that, appellee brought home about $600–$800 per 

week. Prior to his job at the time of the collision, appellee had worked for another 

trucking company. Appellee’s wife testified that appellee made approximately 

$1,200–$1,800 per week depending on the distance driven. In another trucking 

position appellee was paid between $1,000–$2,000 per week, again depending on 

the distance driven. Appellee’s wife testified that before the collision that she and 
23

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

others in her family had run their own trucking businesses. 

Appellee testified that he had a class A commercial drivers license, that he 

had to take tests to become specially licensed and pass a physical. Appellee also 

had to pass a special background check and training to obtain certifications to drive 

hazardous materials, as well as training on facility procedures and emergency 

procedures. Appellee testified that he loved his job because of the “freedom” it 

provided him to move around, be outside, and be his own boss. Appellee wanted 

to buy his own truck and start his own trucking business. Appellee testified that in 

the weeks prior to the collision his “take-home” pay was approximately $900 per 

week and that as his responsibilities increased, so did his pay. The lowest pay he 

received in his job prior to the collision was $600 and the most was over $900. 

Appellee testified that if he had been able to continue he would have been earning 

between $1,000–$1,400 per week and if he had become an owner he could have 

made as much as $4,000 per week. Appellee testified that he had not been able to 

work for 226 weeks. Appellee testified that at $600 per week, he has lost wages in 

the amount of $135,600; at $900 per week, he has lost $203,400.

Appellants cross-examined appellee about appellee’s 2012 tax return. The 

tax return showed that appellee was paid approximately $14,000 in 2012 from the 

trucking company he was working for at the time of the collision. The tax return 

showed that most of that income was reduced by “losses” from appellee’s business, 

and as a result, appellee’s adjusted gross income was $3,728. The 2012 tax return 

also showed that appellee’s federal income tax liability for that year was $230. 

The jury awarded appellee $87,859in loss of earning capacity incurred in the past. 

Appellants argue that appellee failed to introduce any evidence in 

compliance with 18.091(a) of the Texas Civil Practice & Remedies Code. Section 
24

18.091(a) requires that a plaintiff seeking certain damages, such as loss of earning 

capacity, provide evidence of the loss “in the form of a net loss after reduction for 

income tax payments or unpaid tax liability pursuant to any federal income tax 

law.” Tex. Civ. Prac. & Rem. Code § 18.091(a). However, appellants submitted 

evidence of appellee’s federal income tax liability for the year of the collision 

showing that appellee was only subject to payment of $230 in federal income taxes 

that year. Appellee’s evidence of his wages prior to the collision was his “takehome” pay, both he and his wife testified as to the amount that appellee brought 

home from his work as a truck driver. Appellee and his wife also testified to 

appellee’s ability to work both before and after the collision. 

Given the evidence that was introduced, the jury could have reasonably 

presumed that appellee’s tax rate was on the lower side and that appellee’s 

evidence reflected his net pay after taxes. See Big Bird Tree Servs., 365 S.W.3d at 

179; see also Hospadales, 513 S.W.3d at 742 (“Proof of loss of earning capacity is 

always uncertain and is left largely to the discretion of the jury.”). The evidence 

presented by appellee was that his lost wage earning capacity was between 

$135,00$205,000 while the jury awarded only $87,895. Crediting favorable 

evidence if reasonable jurors could, and disregarding contrary evidence unless 

reasonable jurors could not, we conclude that the evidence would enable 

reasonable and fair-minded people to award $87,895 in past lost earning capacity

damages. See Hospadales, 513 S.W.3d at 744. Furthermore, considering and 

weighing all of the evidence, we conclude that the evidence is not so weak to be 

clearly wrong and unjust. See id. Thus, the evidence is legally and factually 

sufficient to support the jury’s award for appellee’s past lost wage earning 

capacity. 

We overrule appellants’ fourth issue. 
25

VII. CAPACITY 

In their seventh and eighth issues, appellants contend that the trial court did 

not have jurisdiction over the Estate of Jorge Mines “since there was no probate 

action” and Ana Lisa Mines “was never appointed or qualified by any Texas court 

to serve as a representative of the Estate of Jorge Mines.” Appellants argue that 

because appellee failed to serve the proper party to the lawsuit, filing against and 

serving the “personal representative” of the Estate of Jorge Mines, instead of Ana 

in her individual capacity, that the judgment rendered by the trial court is void. 

Appellee contends that there is no dispute that Ana is the surviving spouse of the 

decedent, Ana is an heir at law of the decedent, and that Ana, through her counsel, 

appeared in this cause and represented the interest of the decedent. 

A. General Legal Principles 

In a survival action, the parties seek adjudication of claims against the

decedent for the alleged injuries inflicted by the decedent upon the plaintiff. See

Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 850 (Tex. 2005). “The action

survives against the liable person and the person’s legal representatives.” Tex. 

Civ. Prac. & Rem. Code § 71.021(b). “It is well-settled that the estate of a 

decedent is not a legal entity and may not sue or be sued as such.” Supak v. Zboril, 

56 S.W.3d 785, 792–93 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (citing 

Price v. Estate of Anderson, 522 S.W.2d 690, 691 (Tex. 1975)). A suit seeking to 

establish liability against a decedent should ordinarily be instituted against the

personal representative or against the heirs or beneficiaries. Price, 522 S.W.2d at 

691; Supak, 56 S.W.3d at 793. “When no one has qualified as executor or 

administrator of the estate of a deceased spouse, the surviving spouse, whether the 

husband or wife, as the surviving partner of the marital partnership has power to 
26

sue and be sued for the recovery of community property . . . .” Tex. Prob. Code 

§ 160.

8

The community property subject to the sole or joint management, control, and 

disposition of a spouse during marriage continues to be subject to the liabilities of 

that spouse on death. Tex. Estates Code § 101.052(a). Additionally, the interest that 

the deceased spouse owned in any other nonexempt community property passes to 

the deceased spouse’s heirs or devisees charged with the debts that were enforceable 

against the deceased spouse before death. Id. § 101.052(b).

Stated otherwise, community assets of an estate, although they may vest in the 

surviving spouse and heirs upon the decedent's death, are held subject to the 

payment of community debts and subject to the right of a duly appointed and 

qualified personal representative to have possession and control under orders of the 

court during administration. In re Estate of Herring, 983 S.W.2d 61, 63 (Tex. 

App.—Corpus Christi 1998, no pet.). Moreover, while under the jurisdiction of the 

probate court, all community property, including the half-interest of the surviving 

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

estate of the deceased spouse. Id. The authority of the personal representative over 

the survivor’s one-half of the community property in the representative’s possession, 

however, is limited to what is necessary to satisfy the debts of the deceased spouse 

properly payable out of such community assets. Id. 

When there is no duly appointed executor, the proper parties are the heirs or 

beneficiaries of the estate. In re Estate of Whittington, 409 S.W.3d 666, 671 (Tex. 

App.—Eastland 2013, no pet.) (citing Rooke v. Jenson, 838 S.W.2d 229, 230 

(Tex.1992)). An heir, who is a person entitled under the statutes of descent and 

8 At the time this lawsuit was filed, this provision of the Texas Probate Code was in 

effect. Effective January 1, 2014, this provision was recodified in Texas Estates Code section

453.003. 
27

distribution to a part of the estate of a decedent who dies intestate, includes the 

decedent’s surviving spouse. Tex. Estates Code § 22.015. Those who receive the 

property of the decedent as heirs, devisees, or legatees receive the property subject 

to payment of the debts of the decedent. Id. § 101.051. However, if the property is 

insufficient to satisfy the debt, the creditor is not entitled to have a personal 

judgment against the heir. Chadwick v. Watkins, 258 S.W.2d 194, 196-197 (Tex. 

Civ. App.—Texarkana 1953, no writ).

Alternatively, if there is no qualified personal representative of a deceased 

spouse’s estate, the surviving spouse, as the surviving partner of the marital 

partnership, may sue and be sued to recover community property. Tex. Prob. Code 

§ 160.

9 However, this provision does not affect the disposition of the deceased 

spouse’s property. Id.

B. Background

Appellee sued appellant “Ana Lisa Mines, as Personal Representative of the 

Estate of Jorge Luis Mines.” Ana, through counsel, filed an original answer on 

behalf of “Ana Lisa Mines, Personal Representative of the Estate of Jorge Luis 

Mines” asserting general and specific denials. Ana later filed a first amended 

answer with a “specific denial” asserting that she had been sued in the wrong 

capacity.

10 Ana then filed a motion to enforce settlement agreement asking the 

trial court to enforce the alleged agreement between the parties and a motion for 

partial summary judgment as the personal representative. Ana filed a notice of rule 

11 settlement agreement stating “COMES NOW Presumptive Defendant Ana Lisa 

Mines, identified as the Personal Representative of the Estate of Jorge Luis Mines . 

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

453.003. 

10 Appellant asserted that she was sued in the wrong capacity in her first and second

amended answers, but the answers were not verified. 
28

. . .” In the third amended answer, Ana filed a “verified specific denial” that she 

was sued in the wrong capacity. In her third amended answer she attested that she 

“is not liable in the capacity in which she has been sued and there is a defect in the 

parties . . . . she has been sued in a capacity which does not exist. . . . She has been 

sued as the personal representative of the Estate of Jorge Luis Mines, and she is 

not, nor has she ever been a representative of the Estate of Mr. Mines . . . .” 

Ana also filed a motion to dismiss for want of jurisdiction arguing that “[a]t 

the time of the filing of this lawsuit, and to this date, there has been no 

administration opened on the estate, and no person or entity has applied to be or 

designated as the personal representative for the estate.” The motion was not 

supported by an affidavit but attached a record from the Harris County Clerk 

stating that the Clerk’s records “do not indicate probate proceedings for [Jorge 

Luis Mines] as of” July 27, 2016. Later, Ana filed a supplement to her motion to 

dismiss and attached an affidavit attesting that she has “never been named as an

heir or beneficiary to the Estate of Jorge Luis Mines” and that she is “not aware of 

any court proceeding involving the Estate of Jorge Luis Mines” other than the 

lawsuit with appellee. 

After trial, Ana as Personal Representative filed a motion to disregard the 

jury verdict again raising the issue of capacity. The trial court denied this motion. 

Just over a month later, before the judgment was rendered, appellee moved for a 

trial amendment to “make it clear that the Court’s Judgment is against [appellant]

as surviving spouse, heir at law of, and legal representative of the Estate of Jorge 

Mines, deceased.” The trial court granted this amendment. The final judgment 

states that it is against “Defendant ANA LISA MINES, as surviving wife of Jorge 

Mines, as heir at law of Jorge Mines, and as legal representative of Jorge Mines

. . . .” Ana as Personal Representative filed a motion for new trial raising the 
29

capacity issue and asserting that the amendment was too late and the judgment is 

void as a matter of law. 

C. Analysis

Trial amendments are “alterations in, or additions to, pleadings permitted to 

correct errors or supply omissions discovered during the trial.” Fincher v. B & D 

Air Conditioning & Heating Co., 816 S.W.2d 509, 514 (Tex. App.—Houston [1st 

Dist.] 1991, writ denied). Rule 66 and 63 of the Texas Rules of Civil Procedure 

governs trial amendments. Rule 66 of the Texas Rules of Civil Procedure states in 

pertinent part:

If evidence is objected to at the trial on the ground that it is not within 

the issues made by the pleading . . . the court may allow the pleadings 

to be amended and shall do so freely when the presentation of the 

merits of the action will be subserved thereby and the objecting party 

fails to satisfy the court that the allowance of such amendment would 

prejudice him in maintaining his action or defense on the merits. Tex. 

R. Civ. P. 66. 

Rule 63 of the Texas Rules of Civil Procedure provides in pertinent part:

Parties may amend their pleadings . . . by filing such pleas with the 

clerk at such time as not to operate as a surprise to the opposite party; 

provided, that any pleadings, responses or pleas offered for filing 

within seven days of the date of trial or thereafter, or after such time as 

may be ordered by the judge under Rule 166, shall be filed only after 

leave of the judge is obtained, which leave shall be granted by the 

judge unless there is a showing that such filing will operate as a 

surprise to the opposite party. Tex. R. Civ. P. 63. 

It is well established that a party may amend its pleading after verdict but 

before judgment. See, e.g., Greenhalgh v. Serv. Lloyds Ins. Co., 787 S.W.2d 938, 

940 (Tex. 1990); Ortale v. City of Rowlett, 696 S.W.2d 640, 641 (Tex. App.—Dallas 

1985, writ ref’d n.r.e.) (“Post-verdict trial amendments have been allowed to make 

the pleadings conform to the verdict in various situations.”). When a request to 
30

amend pleadings is made under Rule 66 or 63, a court must grant the trial 

amendment unless “(1) the opposing party presents evidence of surprise or 

prejudice, 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 the amendment.” CA 

Partners v. Spears, 274 S.W.3d 51, 70 (Tex. Civ. App.—Houston [14th Dist.] 2008, 

writ den’d) (quoting State Bar of Tex. v. Kilpatrick, 874 S.W.2d 656, 658 (Tex.), 

cert. denied, 512 U.S. 1236 (1994)). The burden of showing surprise or prejudice 

rests on the party resisting the amendment. Id. 

There are circumstances where a trial amendment may not only be proper but 

mandatory. See AON Props., 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 & Gravel Co., 844 S.W.2d 664, 665 (Tex. 

1992)). If the amendment is procedural in nature and merely conforms the pleadings 

to the evidence presented, the amendment is mandatory and the trial court must 

grant the amendment. Id. If, however, the amendment is substantive in nature, and 

changes a party’s cause of action or asserts a new cause of action, the amendment is 

not mandatory and the trial court has discretion to deny the amendment. Id. In such 

a case, an appellate court will not disturb the decision of a trial court to allow or 

refuse a trial amendment unless there is a clear abuse of discretion.11 Id.

The Texas Supreme Court in Chapin held that the amendment—adding a 

verified denial—was mandatory because it was of a formal, procedural nature. 844 

S.W.2d at 665. The court described a procedural change as one that “simply 

11 Our courts favor a liberal construction of the rule and uniformly hold that trial amendments 

should be allowed whenever the interests of justice are served. See Clark v. Walker-Kurth Lumber Co., 

689 S.W.2d 275, 280 (Tex. App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.). The test for abuse of 

discretion is whether the trial court acted without reference to any guiding rules or principles, or 

whether under the circumstances of the case, the trial court's action was arbitrary or unreasonable. 

AON Props., 1999 WL 12739, at *18 (citing Koslow’s v. Mackie, 796 S.W.2d 700, 704 (Tex.1990)). 

The reviewing court will determine whether the trial court abused its discretion by examining the entire 

record. Clark, 689 S.W.2d at 280.
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 amendment “simply conformed the pleadings and the evidence 

presented at trial.” 42 S.W.3d 205, 225 (Tex. App.—Corpus Christi 2001, pet. 

denied). In Krishan, the appellee sought leave to amend his pleadings to clarify that 

Ramirez was bringing suit in his capacity as guardian of the minor who was heir and 

assignee. Id. The court found that the trial court properly granted leave to file the 

amendment. Id. 

The present case—correcting the name of the defendant from “Ana Lisa 

Mines, Personal Representative of the Estate of Jorge Luis Mines” to “Anna Lisa 

Mines, as the surviving wife of Jorge Luis Mines, as heir at law of Jorge Luis Mines, 

and as legal representative of Jorge Luis Mines, deceased”—is more in the nature of 

a procedural change, like Chapin and Krishan, than a substantive change. In this

case, the amendment did not change a single substantive issue for trial. The only 

change was formal and procedural: changing the nine or ten words appearing after 

Ana’s name. 

In the original pleadings, appellee sued Ana as a representative of the estate of 

Jorge Luis Mines—he did not sue Ana in her individual capacity. This means that 

appellee will look to the property of the estate if he wins, which includes the 

separate property of the deceased spouse as well as the community property subject 

to the sole or joint management of the deceased spouse. This does not include

appellant’s separate property. Appellee, however, incorrectly named appellant as 

the “personal representative of the estate of Jorge Luis Mines” when there was no 

personal representative duly qualified. 

This error was corrected by the trial amendment. The trial amendment 

clarified that appellant was still being sued as a representative of the estate—no 

longer as a personal representative, but rather as the surviving spouse, heir at law, 
32

and legal representative of the decedent. None of these capacities reach the 

surviving spouse’s separate property if a judgment is rendered against appellant. 

Because, under the code, being sued as surviving spouse, heir at law, and legal 

representative of the decedent also means that appellee will look to the assets of 

Jorge Mines, not to the separate property of Ana Mines, the trial amendment is more 

in the nature of a procedural change—not a substantive change. Accordingly, the

amendment was mandatory, and the trial court did not err in allowing the 

amendment.12

Rule 301 of the Texas Rules of Civil Procedure only requires that “[t]he 

judgment of the court shall conform to the pleadings.” Tex. R. Civ. P. 301. In this 

case under these facts, the trial court did not err in allowing appellee leave to make 

a trial amendment to clarify that Ana Lisa Mines was being sued as the surviving 

spouse, heir at law, and legal representative of the estate of Jorge Luis Mines. 

Therefore, the judgment of the court conformed to the amended pleadings and was 

proper.

We overrule appellants’ seventh and eighth issues. 

VIII. CONCLUSION

Having sustained appellants’ issue five in part, we reverse the portion of the 

trial court’s judgment awarding future medical care expenses. We affirm the 

remainder of the trial court’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 amendment was substantive in nature, and therefore not mandatory, 

appellants do not meet their burden of showing surprise or prejudice. Although Ana objected to 

the proposed trial amendment, the record does not show that she was prejudiced or surprised. To 

the contrary, the record is replete with evidence that she was well aware that she had been sued 

in the incorrect capacity. Moreover, here due process rights were not violated. Ana was served 

with citation, made a general appearance, and was before the trial court at all times relevant to 

this appeal.
33

expenses, we suggest a remittitur of $7,000 of the future medical care expenses, 

modifying the award of damages in the judgment from $512,859.00 to

$505,859.00. Tex. R. App. P. 46.3. If appellee Kenon D. Murphy timely files the 

remittitur with the clerk of this court within twenty days from the date of this 

opinion, we shall render an amended judgment modifying the trial court’s 

judgment to reflect an award of $505,859.00 in damages and affirming the trial 

court’s judgment as so modified. Tex. R. App. P. 43.2(b), 46.3. If the suggested 

remittitur is not filed, the case will be remanded to the trial court for further 

proceedings limited to redetermination of future medical care expenses of Kenon 

D. Murphy. See Larson, 730 S.W.2d at 641 (prevailing party has option to accept 

remittitur or have case remanded). 

/s/ Ken Wise

Justice

Panel consists of Chief Justice Christopher and Justices Wise and Zimmerer.