Reversed and Remanded in part; Affirmed in part and Opinion Filed July 8, 2014
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-01584-CV
CENTER OPERATING COMPANY, LP, Appellant V. BRANDY A. DUNCAN, Appellee
On Appeal from the 160th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-12-00528
MEMORANDUM OPINION Before Justices Bridges, Fillmore, and Lewis Opinion by Justice Bridges Center Operating Company files this restricted appeal from the trial court’s default
judgment in favor of Brandy A. Duncan on her claims arising out of a slip and fall on Center’s
premises. In three issues, Center argues error is apparent on the face of the record as to (1) the
trial court’s failure to provide notice of the default judgment, (2) the award of mental anguish
damages where there was no evidence to support the award, and (3) the award of past medical
expenses where the award exceeds the amount of charges submitted. For reasons set out below,
we reverse the trial court’s judgment in part and remand for further proceedings.
In January 2012, Duncan sued Center alleging claims for negligence arising out of
Center’s failure to keep its premises in a reasonably safe condition, leading to Duncan’s slip and
fall in a puddle of water on the ground. As a proximate result of Center’s negligence, Duncan alleged she suffered physical pain and mental anguish in the past and future, medical expenses in
the past and future, physical impairment, and lost wages in the amount of $600. In March 2012,
Duncan filed a motion for default judgment alleging Center was properly served citation and a
copy of her original petition, the deadline for Center to file an answer was February 20, 2012, but
Center did not file an answer or any pleadings constituting an answer and had not entered an
appearance.
In May 2012, a hearing on Duncan’s motion for default judgment was held before an
associate judge. Center did not appear. Duncan introduced medical record affidavits and cost of
service affidavits pertaining to the medical records. Duncan testified she slipped and fell in a
puddle inside Center’s premises, injuring her lower back, right knee, and left thumb. Duncan
sought medical treatment and received treatment from June 29 until August 16, 2011. Duncan
had x-rays and an MRI. The pain in her left thumb made it difficult for her to lift things at work,
though it was not broken. Following her testimony, Duncan’s attorney moved for default
judgment “as to past medical expenses in the amount of $11,308,” past physical pain and
suffering in the amount of $20,000, and past physical impairment in the amount of $20,000.
Duncan’s counsel and the associate judge then engaged in the following exchange:
THE COURT: You’re asking for $40,000 plus the medicals?
DUNCAN’S COUNSEL: Yes, Your Honor.
THE COURT: I don’t really see the future -- you don’t have this separated out. Do you have it separated out for past physical pain and mental anguish? Which I will assess $20,000. But then you don’t have anything else. You don’t have -- you just have future pain and mental anguish. So what was the other that you said?
DUNCAN’S COUNSEL: Oh, impairment.
THE COURT: For impairment. Past impairment.
DUNCAN’S COUNSEL: Past impairment.
–2– THE COURT: Well, I’m really going to put that with the physical pain and mental anguish.
DUNCAN’S COUNSEL: That’s fine, Your Honor.
THE COURT: So we’ll leave that at $20,000.
The associate judge stated she was assessing judgment at $31,308 and court costs, and she
adjourned the hearing. On May 25, 2012, the trial court entered a default judgment awarding
Duncan the sum of $31,308, which included $11,308 for “past medical bills” and $20,000 for
“past physical pain and mental anguish.” In November 2012, Center filed this restricted appeal.
To prevail on its restricted appeal, Center must establish that: (1) it filed notice of the
restricted appeal within six months after the judgment was signed; (2) it was a party to the
underlying lawsuit; (3) it did not participate in the hearing that resulted in the judgment
complained of and did not timely file any post-judgment motions or requests for findings of fact
and conclusions of law; and (4) error is apparent on the face of the record. Alexander v. Lynda’s
Boutique, 134 S.W.3d 845, 848 (Tex. 2004). Only the fourth element is at issue. For purposes
of restricted appeal review, the face of the record consists of all the papers on file in the appeal,
including the reporters record. Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270
(Tex. 1997) (per curiam).
Center, in its reply brief, has withdrawn its first issue, conceding that a return of citation
had been filed with the trial court for the requisite amount of time to comply with rule 107.
Thus, we need not further address Center’s first issue.
In its second issue, Center argues error is apparent on the face of the record as to the
award of mental anguish damages because there is no evidence or testimony to support the
award. Mental anguish damages cannot be awarded without either direct evidence of the nature,
duration, or severity of plaintiff’s anguish, thus establishing a substantial disruption in the
plaintiff’s daily routine or other evidence of a high degree of mental pain and distress that is
–3– more than mere worry, anxiety, vexation, embarrassment, or anger. Saenz v. Fidelity & Guar.
Ins., 925 S.W.2d 607, 614 (Tex. 1996) (citing Parkway Co. v. Woodruff, 901 S.W.2d 434, 444
(Tex. 1995)). Not only must there be evidence of the existence of compensable mental anguish,
there must also be some evidence to justify the amount awarded. Id.
Here, Duncan testified she slipped and fell and injured her lower back, right knee, and
left thumb. She offered no testimony concerning mental anguish. Further, the record does not
provide any means of distinguishing the amount awarded for past physical pain from that
awarded for mental anguish. See Thomas v. Martinez, 217 S.W.3d 680, 684 (Tex. App.–Dallas
2007, pet. struck) (reversing and remanding for new trial pain-and-suffering award where
appellate court, in restricted appeal, found no means of distinguishing amount awarded for pain
and suffering from amount awarded for physical impairment). Because no evidence in the
record supports the associate judge’s award for mental anguish, and there is no way to
distinguish the amount awarded for past physical pain, the associate judge’s award of $20,000
for past physical pain and mental anguish constitutes error on the face of the record. We sustain
Center’s second issue.
In its third issue, Center argues error is apparent on the face of the record as to the award
for past medical expenses because the award exceeds the amount of charges submitted.
Specifically, Center argues the medical bills total $10,868, $440 less than the $11,308 awarded
for past medical expenses. Duncan concedes the medical bills do not support the award for past
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Reversed and Remanded in part; Affirmed in part and Opinion Filed July 8, 2014
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-01584-CV
CENTER OPERATING COMPANY, LP, Appellant V. BRANDY A. DUNCAN, Appellee
On Appeal from the 160th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-12-00528
MEMORANDUM OPINION Before Justices Bridges, Fillmore, and Lewis Opinion by Justice Bridges Center Operating Company files this restricted appeal from the trial court’s default
judgment in favor of Brandy A. Duncan on her claims arising out of a slip and fall on Center’s
premises. In three issues, Center argues error is apparent on the face of the record as to (1) the
trial court’s failure to provide notice of the default judgment, (2) the award of mental anguish
damages where there was no evidence to support the award, and (3) the award of past medical
expenses where the award exceeds the amount of charges submitted. For reasons set out below,
we reverse the trial court’s judgment in part and remand for further proceedings.
In January 2012, Duncan sued Center alleging claims for negligence arising out of
Center’s failure to keep its premises in a reasonably safe condition, leading to Duncan’s slip and
fall in a puddle of water on the ground. As a proximate result of Center’s negligence, Duncan alleged she suffered physical pain and mental anguish in the past and future, medical expenses in
the past and future, physical impairment, and lost wages in the amount of $600. In March 2012,
Duncan filed a motion for default judgment alleging Center was properly served citation and a
copy of her original petition, the deadline for Center to file an answer was February 20, 2012, but
Center did not file an answer or any pleadings constituting an answer and had not entered an
appearance.
In May 2012, a hearing on Duncan’s motion for default judgment was held before an
associate judge. Center did not appear. Duncan introduced medical record affidavits and cost of
service affidavits pertaining to the medical records. Duncan testified she slipped and fell in a
puddle inside Center’s premises, injuring her lower back, right knee, and left thumb. Duncan
sought medical treatment and received treatment from June 29 until August 16, 2011. Duncan
had x-rays and an MRI. The pain in her left thumb made it difficult for her to lift things at work,
though it was not broken. Following her testimony, Duncan’s attorney moved for default
judgment “as to past medical expenses in the amount of $11,308,” past physical pain and
suffering in the amount of $20,000, and past physical impairment in the amount of $20,000.
Duncan’s counsel and the associate judge then engaged in the following exchange:
THE COURT: You’re asking for $40,000 plus the medicals?
DUNCAN’S COUNSEL: Yes, Your Honor.
THE COURT: I don’t really see the future -- you don’t have this separated out. Do you have it separated out for past physical pain and mental anguish? Which I will assess $20,000. But then you don’t have anything else. You don’t have -- you just have future pain and mental anguish. So what was the other that you said?
DUNCAN’S COUNSEL: Oh, impairment.
THE COURT: For impairment. Past impairment.
DUNCAN’S COUNSEL: Past impairment.
–2– THE COURT: Well, I’m really going to put that with the physical pain and mental anguish.
DUNCAN’S COUNSEL: That’s fine, Your Honor.
THE COURT: So we’ll leave that at $20,000.
The associate judge stated she was assessing judgment at $31,308 and court costs, and she
adjourned the hearing. On May 25, 2012, the trial court entered a default judgment awarding
Duncan the sum of $31,308, which included $11,308 for “past medical bills” and $20,000 for
“past physical pain and mental anguish.” In November 2012, Center filed this restricted appeal.
To prevail on its restricted appeal, Center must establish that: (1) it filed notice of the
restricted appeal within six months after the judgment was signed; (2) it was a party to the
underlying lawsuit; (3) it did not participate in the hearing that resulted in the judgment
complained of and did not timely file any post-judgment motions or requests for findings of fact
and conclusions of law; and (4) error is apparent on the face of the record. Alexander v. Lynda’s
Boutique, 134 S.W.3d 845, 848 (Tex. 2004). Only the fourth element is at issue. For purposes
of restricted appeal review, the face of the record consists of all the papers on file in the appeal,
including the reporters record. Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270
(Tex. 1997) (per curiam).
Center, in its reply brief, has withdrawn its first issue, conceding that a return of citation
had been filed with the trial court for the requisite amount of time to comply with rule 107.
Thus, we need not further address Center’s first issue.
In its second issue, Center argues error is apparent on the face of the record as to the
award of mental anguish damages because there is no evidence or testimony to support the
award. Mental anguish damages cannot be awarded without either direct evidence of the nature,
duration, or severity of plaintiff’s anguish, thus establishing a substantial disruption in the
plaintiff’s daily routine or other evidence of a high degree of mental pain and distress that is
–3– more than mere worry, anxiety, vexation, embarrassment, or anger. Saenz v. Fidelity & Guar.
Ins., 925 S.W.2d 607, 614 (Tex. 1996) (citing Parkway Co. v. Woodruff, 901 S.W.2d 434, 444
(Tex. 1995)). Not only must there be evidence of the existence of compensable mental anguish,
there must also be some evidence to justify the amount awarded. Id.
Here, Duncan testified she slipped and fell and injured her lower back, right knee, and
left thumb. She offered no testimony concerning mental anguish. Further, the record does not
provide any means of distinguishing the amount awarded for past physical pain from that
awarded for mental anguish. See Thomas v. Martinez, 217 S.W.3d 680, 684 (Tex. App.–Dallas
2007, pet. struck) (reversing and remanding for new trial pain-and-suffering award where
appellate court, in restricted appeal, found no means of distinguishing amount awarded for pain
and suffering from amount awarded for physical impairment). Because no evidence in the
record supports the associate judge’s award for mental anguish, and there is no way to
distinguish the amount awarded for past physical pain, the associate judge’s award of $20,000
for past physical pain and mental anguish constitutes error on the face of the record. We sustain
Center’s second issue.
In its third issue, Center argues error is apparent on the face of the record as to the award
for past medical expenses because the award exceeds the amount of charges submitted.
Specifically, Center argues the medical bills total $10,868, $440 less than the $11,308 awarded
for past medical expenses. Duncan concedes the medical bills do not support the award for past
medical expenses but urges the $440 that was not supported by the evidence can be identified
and judgment should be rendered for the $10,868 amount. We note this amount also includes a
$153 charge that, according to the affidavit supporting this amount, “may include a record
summary report fee of $150.” Thus, the record shows that the amount awarded for past medical
expenses was not supported by the evidence and may have included charges for something other
–4– than past medical treatment. Under these circumstances, we conclude the award of $11,308
constitutes error on the face of the record. The trial court is in a better position to determine the
correct amount of past medical bills in this case. We sustain Center’s third issue.
In reaching our determination, we note the entry of a default judgment operates as an
admission of all allegations of fact set out in plaintiff’s petition, except as to unliquidated
damages. Thomas, 217 S.W.3d at 684. From this rule, it follows that a default judgment admits
that the defendant’s conduct caused the event upon which the plaintiff’s suit is based. Id. At a
default judgment prove-up hearing, the plaintiff is still required, however, to prove the causal
nexus between the event sued upon and her injuries. Id. At the hearing, Duncan testified she fell
in a puddle of liquid on the floor, resulting in injuries to her right knee, hand, thumb, and back.
Nothing in the record refutes this evidence, and Center does not dispute its liability for Duncan’s
damages.
In conclusion, we affirm the trial court’s judgment holding Center liable for causing the
underlying accident and causing Duncan’s injuries. See id.
We reverse that portion of the trial court’s judgment awarding $11,308 for “past medical
bills” and $20,000 for “past physical pain and mental anguish” and remand for further
proceedings.
121584F.P05 /David L. Bridges/ DAVID L. BRIDGES JUSTICE
–5– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
CENTER OPERATING COMPANY, LP, On Appeal from the 160th Judicial District Appellant Court, Dallas County, Texas Trial Court Cause No. DC-12-00528. No. 05-12-01584-CV V. Opinion delivered by Justice Bridges. Justices Fillmore and Lewis participating. BRANDY A. DUNCAN, Appellee
In accordance with this Court’s opinion of this date, the trial court’s judgment holding Center Operating Company, LP liable for causing the underlying accident and causing Duncan’s injuries is AFFIRMED. That portion of the trial court’s judgment awarding $11,308 for past medical bills and $20,000 for past physical pain and mental anguish is REVERSED and this cause is REMANDED to the trial court for further proceedings consistent with this opinion.
It is ORDERED that appellant Center Operating Company, LP recover its costs of this appeal from appellee Brandy A. Duncan.
Judgment entered July 8, 2014
–6–