Patino-Perez v. Howland

MELISSA PATINO-PEREZ, INDIVIDUALLYAND AS REPRESENTATIVE OF THE ESTATE OF MARCELINO PATINO,MARIA PATINO-PEREZ, AND ECTOR PATINO, Appellants v. NICHOLAS K. HOWLAND, Appellee

NO. 01-16-00054-CV

Court of Appeals For The First District of Texas

August 22, 2017

On Appeal from the 212th District Court Galveston County, Texas

Trial Court Case No. 14-CV-0158

MEMORANDUM OPINION

Appellants, Melissa Patino-Perez, individually and as representative of the estate of Marcelino Patino, Maria Patino-Perez, and Ector Patino (collectively, "the Patinos"), challenge the trial court's judgment, rendered after a trial to the court, in their suit for negligence and wrongful-death¹ against appellee, Nicholas K. Howland. In four issues, the Patinos contend that the evidence is factually insufficient² to support the trial court's award of damages and the trial court erred in denying their motion for new trial.

We affirm in part and reverse and remand in part.

Background

In their Seventh Amended Petition, the Patinos alleged that on November 21, 2013, Howland, a medical resident at the University of Texas Medical Branch ("UTMB"), fell asleep while driving his automobile on F.M. 646 in League City, Texas. Howland's car then crossed over the center line of the roadway and collided head-on with the car of Marcelino, the decedent. Ector, the driver of the decedent's car, was injured in the collision, and the decedent, who was a passenger, was killed. The Patinos, who are the decedent's children, brought claims against Howland for negligence and wrongful-death, alleging that he knew or should have known the risks of driving while sleep-deprived and his failure to maintain a single lane proximately caused Ector's injuries and the decedent's death.

Ector sought recovery of his medical expenses and damages for his physical pain, mental anguish, and past and future physical impairment. The Patinos each sought damages for lost wages and, for the wrongful death of the decedent, past and future pecuniary loss, mental anguish, and loss of companionship and society. And Melissa, as representative of the decedent's estate, sought damages for the decedent's funeral expenses. Collectively, the Patinos sought damages in the amount of at least $2,000,000.00.

Howland answered and executed a written "Stipulation of Liability," as follows:

On November 21, 2013, shortly after 10:00 p.m., . . . Howland was driving eastbound on Highway 646 headed to his home when he momentarily fell asleep crossing the center line colliding with the vehicle driven by [Ector]. . . . Howland takes full responsibility for causing the accident in question.

At trial, Ector testified that on November 21, 2013, while he was driving the decedent home from work in his car, Howland's car struck the decedent's car "head-on." Then Ector, seeing smoke, urged the decedent to exit the car, but he did not respond. Ector recalled being pulled from the wreckage by a bystander, lying on the ground, and being transported by ambulance to a hospital. He later learned that the decedent had died at the scene of the collision. The impact of the collision fractured Ector's right femur, three ribs, his sternum, and a thoracic vertebra; injured ligaments in his right foot; dislocated a toe; and caused various lacerations on hisface, chest, and hands. He underwent surgery to repair his leg fracture, and he remained hospitalized for five days. The trial court admitted into evidence Ector's medical records and bills.

For eight months after he was discharged from the hospital, Ector lived with his mother. She, along with his girlfriend and sisters, assisted him with everyday tasks, including feeding himself, as he was unable to move his arms in front of his chest. In December 2013, the month after the collision, Ector visited an orthopedic physician at UTMB for "follow-up" treatment of his right leg and foot. Although UTMB referred Ector to a specialist, Dr. Panchbhavi, for further treatment of his foot, Ector did not follow through because his pain had "significantly improved since [his] surgery." In January 2014, Ector again declined to see a foot specialist, reporting to his doctor that his pain had significantly improved. In April 2014, Dr. Robert Leisten, a podiatrist, treated Ector for a painful, swollen right foot. Although Leisten instructed Ector to stay off of his foot, apply ice for one week, and return if there was not improvement, Ector did not immediately return to him.

In September 2014, Ector, complaining of pain in his right foot, returned to see Dr. Leisten, who referred him to Dr. Amy Riedel. Three months later, in December 2014, Ector went to see Dr. Riedel, complaining of pain in his right foot. He reported to Riedel that he was not experiencing any nervousness, depression, anxiety, memory loss, or mental disturbances. Riedel opined that surgicalintervention was needed to realign a dislocation in Ector's foot, and she provided him with a "fracture boot" to wear until he could afford surgery. Ector agreed that in his March 2015 deposition, he had testified that his femur fracture and all of his injuries, except for his issues with his right foot and ankle, had healed satisfactorily. And he explained that at the time of trial, although he still had constant pain, he was not undergoing any medical treatment or physical therapy. However, although he was back living on his own at his apartment, he still relied on a "fracture boot," wheelchair, or cane for assistance with getting around.

Ector explained that after the collision, he, due to his injuries, was unable to return to his position as a busboy at Don Julio's restaurant. In regard to his lost wages, he noted that in December 2014, he became employed part-time as a cashier at a Jimmy John's restaurant. Ector left Jimmy John's in May 2015, however, because he experienced difficulty in standing for long periods of time. Thus, he accepted his current, as of the time of trial, position with an account management company, where he was able to work seated at a desk.

Ector, who was twenty years old at the time of the collision, further testified about his previous relationship with the decedent and how the decedent's death had affected his life. When Ector was four years old, the decedent and his mother divorced, and he lived with the decedent "at first." He then lived with his mother and visited the decedent on weekends. Although Ector, from sixth to eighth grade,lived with his mother, he was with the decedent "most of the time." In 2011, Ector dropped out of high school and subsequently moved to Kentucky to live and work with the decedent. While in Kentucky, the decedent encouraged Ector to finish high school, and after Ector graduated in 2013, he and the decedent returned to Texas and lived together. The decedent then helped Ector to obtain a job and pay the deposit on his first apartment, buy furniture, and obtain car insurance. Over the last year of the decedent's life, Ector and the decedent "became best friends." They went fishing every weekend and played billiards, laser tag, and sports. Ector explained that the loss of his father has caused him to lose sleep at night, gives him nightmares "every day, two times a day," and causes him to cry suddenly and uncontrollably. He described his pain as "unbearable," noting that he no longer goes fishing because it brings back too many memories.

Melissa, who was twenty-five years old at the time of trial, testified that she was eight years old when the decedent and her mother divorced in 1998. Afterwards, Melissa lived with the decedent. In 2001, however, after the decedent had moved in with his girlfriend, Imelda Mancera, Melissa moved back in with her mother. Melissa explained that while the decedent lived with Mancera, "the relationship was strained" because Mancera did not want her, Ector, or Maria around her home. Thus, Melissa's contact with the decedent became limited to telephone calls and holiday visits. In 2007, Melissa joined the United States Army. After her discharge in 2009,she lived with the decedent "off and on" and then moved into her own apartment. In 2012 or 2013, after the decedent and Mancera had broken up, the decedent began visiting Melissa on weekends or whenever he was in town. During his visits, they spent time together going fishing, playing soccer, and playing with her two children. Melissa noted that the decedent gave her parenting advice and contributed $100 to $200 per month toward the care of her children. She also noted that she took care of him and helped him with managing his finances. Melissa further explained that since the decedent's death, she has suffered from insomnia and nightmares. She also testified about her lost wages and the decedent's funeral expenses.

Maria, Melissa's twin sister, testified that after the decedent's divorce from her mother, she lived with her mother and visited the decedent during her vacations. After the decedent and Mancera had broken up, the decedent moved to Kentucky, and Maria drove Ector there to live and work with him. "Shortly after," the decedent moved back to Texas, and Maria began to see him more. He occasionally stopped by and took her out to eat, and they spent time together while he fished. Maria explained that they had started a "whole new relationship," she was "getting to know him all over again," and his death has caused her to lose sleep.

Maria further testified that after Ector was discharged from the hospital, she took time off from work to care for him. Although he moved in with their mother, Maria lived in a nearby apartment and helped with his care. She explained that Ectorwas in extreme pain and had nightmares. Maria noted that he often called out or screamed at night, and she was unable to sleep during his episodes. She also testified about her lost wages.

At the close of trial, Ector requested damages in the amount of $85,593.04 for medical expenses; $12,046.25 for lost wages; $25,000.00 for future loss...