Durham Transp. Co., Inc. v. Beettner

Page 859

201 S.W.3d 859

DURHAM TRANSPORTATION COMPANY, INC., Appellant, v. Tina and Charles BEETTNER, Individually and as Next Friends of Michael Aaron Beettner, a Minor; Sylvia Whiddon-Cervantes, individually and as Next Friend of Samantha Whiddon, a Minor; and Elisabeth Thomas, Individually and as Next Friend of Nicole Thomas, a Minor, Appellees.

No. 10-05-00212-CV.

Court of Appeals of Texas, Waco.

July 19, 2006.

Rehearing Overruled August 22, 2006.

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Oliver B. Krejs, SettlePou, Dallas, for Appellant.

Jimmie A. Franklin, Fort Worth, for Appellees.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

OPINION

FELIPE REYNA Justice.

The parents of three children filed suit against Durham Transportation Company for injuries the children sustained in a school bus accident. A jury found in Appellees' favor and awarded damages. After trial, the court determined that the current prejudgment and postjudgment interest statutes are unconstitutional, retroactive laws as applied to Appellees because these statutes took effect during the pendency of Appellees' suit.

Durham contends in seven issues that:

(1) the court erred by submitting each of the Appellees' damages questions in broad form because there is no evidence to support one or more of the elements of each Appellee's damages claims;

(2) the evidence is factually insufficient to support certain elements of the Appellees' damages claims;

(3) the court erred by declaring the prejudgment and postjudgment interest statutes unconstitutional;

(4) the court erred by awarding attorney's fees because no evidence was presented to the jury on this issue and no question was submitted to the jury on the issue;

(5) the court erred by awarding attorney's fees for a declaratory relief claim which was asserted solely as a vehicle to obtain attorney's fees;

(6) the court erred by granting Appellees' no-evidence summary judgment motion on an issue on which the Appellees had the burden of proof (constitutionality of prejudgment and postjudgment interest statutes); and

(7) the court erred by awarding prejudgment interest on costs and attorney's fees.

We will affirm in part, reverse and render in part, and suggest a remittitur.

BROAD-FORM SUBMISSION

Durham contends in its first issue that the court erred by submitting each of the Appellees' damages questions in broad form because there is no evidence to support one or more of the elements of each Appellee's damages claims. With respect to the Beettners' and Whiddons' damages, Durham contends that there is no evidence of past or future physical impairment or lost earning capacity.¹ With respect to the Thomases' damages, Durham contends there is no evidence of past physical impairment, lost earning capacity, or future disfigurement.

A trial court errs by submitting a broad-form damages question which includes elements of damages for which there is no evidence. Romero v. KPH Consolidation, Inc., 166 S.W.3d 212, 226-27 (Tex.2005); Harris County v. Smith, 96 S.W.3d 230, 233-34 (Tex.2002). To resolve Durham's first issue then, we must determine whether, as Durham contends, there is no evidence to support the challenged damages elements. See Romero, 166 S.W.3d at 220-24.

When we conduct a no-evidence review, we must determine "whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). We "must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not." Id.

The elements of damages at issue here are past and future physical impairment, future lost earning capacity, and future disfigurement. We address each of these in turn.

"[P]hysical impairment must be substantial and extend beyond any pain, suffering, mental anguish, lost wages or diminished earning capacity." Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 772 (Tex.2003). A broad range of limitations on physical activities have been upheld as compensable physical impairments. See Patlyek v. Brittain, 149 S.W.3d 781, 787 (Tex.App.-Austin 2004, pet. denied).

Examples of injuries or limitations that have been held to be legally sufficient evidence of physical impairment include difficulty eating and communicating with others; continuing inability to sleep due to sharp pains, plus inability to run, bicycle, participate in triathlons, and play with children; past inability to walk and future difficulties in running, standing, and climbing; inability to ascend or descend stairs or kneel and difficulty in standing for long periods of time; loss of seventy-five percent of strength in left arm, which subsequently contributed to plaintiff's falling, breaking her leg, and being confined to a wheelchair; and difficulties performing yard work, car maintenance, and playing racquetball.

Id. (citations omitted).

"Lost earning capacity concerns the impairment to one's ability to work." Clayton v. Wisener, 190 S.W.3d 685, 697 (Tex.App.-Tyler 2005, pet. denied) (quoting Koko Motel, Inc. v. Mayo, 91 S.W.3d 41, 51 (Tex.App.-Amarillo 2002, pet. denied)). This element of damages measures the extent to which a plaintiff's pre-injury capacity to work was impaired by the injury. See Tagle v. Galvan, 155 S.W.3d 510, 519-20 (Tex.App.-San Antonio 2004, no pet.); Plainview Motels, Inc. v. Reynolds, 127 S.W.3d 21, 35-36 (Tex.App.-Tyler 2003, pet. denied).

To support an award of damages for lost earning capacity, a plaintiff must present evidence sufficient to permit a jury "to reasonably measure earning capacity in monetary terms." Tagle, 155 S.W.3d at 519; Plainview Motels, 127 S.W.3d at 35-36. However, courts recognize that any determination of future earning capacity involves an element of uncertainty. See McIver v. Gloria, 140 Tex. 566, 169 S.W.2d 710, 712 (1943); Tagle, 155 S.W.3d at 519; Plainview Motels, 127 S.W.3d at 35; Koko Motel, 91 S.W.3d at 51. Thus, juries are accorded considerable discretion in making such determinations. Id. Nonetheless, a jury's award of damages for lost earning capacity "must be based on something more than mere conjecture." McIver, 169 S.W.2d at 712; accord Clayton, 190 S.W.3d at 697-98; Koko Motel, 91 S.W.3d at 51.

Non-exclusive factors which may be considered in determining lost earning capacity include "evidence of past earnings; the plaintiff's stamina, efficiency, and ability to work with pain; the weaknesses and degenerative changes that will naturally result from the plaintiff's injury; and the plaintiff's work-life expectancy." Tagle, 155 S.W.3d at 519; Plainview Motels, 127 S.W.3d at 36; accord Koko Motel, 91 S.W.3d at 52. However, each case must be determined according to its particular facts and circumstances. See McIver, 169 S.W.2d at 712; Clayton, 190 S.W.3d at 698; Koko Motel, 91 S.W.3d at 51.

"Where plaintiff is a child, who has never earned any money, the jury must determine the value of its lost earning capacity altogether from their common knowledge and sense of justice." McIver, 169 S.W.2d at 712; Pilgrim's Pride Corp. v. Smoak, 134 S.W.3d 880, 903 (Tex.App.-Texarkana 2004, pet. denied); accord Strauss v. Continental Airlines, Inc., 67 S.W.3d 428, 436 (Tex.App.-Houston [14th Dist.] 2002, no pet.); Pipgras v. Hart, 832 S.W.2d 360, 366 (Tex.App.-Fort Worth 1992, writ denied); C.T.W. v. B.C.G., 809 S.W.2d 788, 794 (Tex.App.-Beaumont 1991, no writ).

Disfigurement is "that which impairs or injures the beauty, symmetry, or appearance of a person or thing; that which renders unsightly, misshapen or imperfect, or deforms in some manner." Goldman v. Torres, 161 Tex. 437, 341 S.W.2d 154, 160 (1960); accord Doctor v. Pardue, 186 S.W.3d 4, 18 (Tex.App.-Houston [1st Dist.] 2005, pet. filed); SunBridge Healthcare Corp. v. Penny, 160 S.W.3d 230, 252 (Tex.App.-Texarkana 2005, no pet.); Schindler Elevator Corp. v. Anderson, 78 S.W.3d 392, 413 (Tex.App.-Houston [14th Dist.] 2001, pet. granted, judgm't vacated w.r.m.).

Michael Beettner

Durham contends that the record contains no evidence that Michael Beettner suffered past or future physical impairment or lost earning capacity.

Beettner testified that the accident caused him to suffer torn fibers on the lateral side of his left kneecap. Medical records admitted in evidence support this diagnosis. Immediately after the accident, his knee "hurt bad," and he experienced pain when walking. A knee brace provided by the hospital helped with the pain by preventing him from fully extending his leg. Beettner experienced this pain and discomfort for "about a month to a month and a half." After that, he experienced "very slight pain."

Nevertheless, Beettner was still experiencing problems with his knee at the time of trial, five and one-half years after the accident. Beettner testified that

[a]bout every month, two to three times a month it will catch, the kneecap part will catch and pop. And at first, for about five minutes, it's very painful, and then after that, it's pretty much fine, but it depends on how much the weather changes as to how much it does in the month.

Because of the knee injury, Beettner decreased his participation in athletics. Before the accident, he participated in football, baseball, basketball, and track. Afterward, he played only baseball because of the pain associated with his knee.

The jury awarded the Beettners $3,000 in damages for physical pain, mental anguish, and physical impairment suffered in the past. The jury awarded them $25,000 in damages for physical pain, mental anguish, physical impairment, and lost earning capacity which Beettner will suffer in the future.

Beettner's testimony that (1) the injury has caused him to experience pain while walking, (2) the injury has caused him to decrease his participation in athletics, and (3) his symptoms have continued constitutes evidence which "would enable...