Durham Transportation Co., Inc. v. Tina Beettner

• Court: Court of Appeals of Texas
• Decided: July 19, 2006
• Docket: 10-05-00212-CV
• Status: Published

Opinion

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00212-CV

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

From the 249th District Court

Johnson County, Texas

Trial Court No. 249-270-98

Opinion

          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 reasonable and fair-minded people” to award damages for past and future physical impairment.  See Patlyek, 149 S.W.3d at 787-88; Plainview Motels, 127 S.W.3d at 39; Schindler Elevator Corp., 78 S.W.3d at 412.

          With regard to lost earning capacity, Beettner contends that his testimony regarding the pain he frequently experiences while walking provided a sufficient basis for the jury to award damages for lost earning capacity.  Durham counters that this constitutes “no evidence” because Beettner has not missed any work because of his injury, because the injury has not affected his grades, and because he has continued to play baseball since suffering the injury.  However, these contentions go to the factual sufficiency of the evidence rather than the question of whether the Beettners produced “some evidence” of lost earning capacity.

          Appellate courts have affirmed damages awarded for lost earning capacity where the plaintiff suffered a knee injury or some other injury which affected the plaintiff’s ability to walk.  See, e.g., Allright, Inc. v. Van Scoyoc, 784 S.W.2d 942, 945 (Tex. App.—Houston [14th Dist.] 1990, no writ); Mo. Pac. R.R. Co. v. Schreck, 774 S.W.2d 687, 689-90 (Tex. App.—Texarkana 1989, no writ); Padget v. Gray, 727 S.W.2d 706, 712 (Tex. App.—Amarillo 1987, no writ).  The jury heard Beettner’s testimony about how his knee injury affected his ability to walk.  It was for the jurors to apply “their common knowledge and sense of justice” to determine the amount of damages the Beettners should be awarded for lost earning capacity.  See McIver, 169 S.W.2d at 712; Pipgras, 832 S.W.2d at 366; C.T.W., 809 S.W.2d at 794.

          Beettner’s testimony about the pain he experiences while walking is evidence which “would enable reasonable and fair-minded people” to award damages for lost earning capacity.  See Allright, 784 S.W.2d at 945; Mo. Pac. R.R., 774 S.W.2d at 689-90; Padget, 727 S.W.2d at 712.

Samantha Whiddon

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

          Whiddon testified that, because of a tongue injury she suffered in the accident, her ability to speak has been impaired.[2]  “[I]f I try to speak too quickly . . . I have to repeat myself and people can’t understand me . . . .”  Her mother likewise testified that Whiddon talks differently now and “if she talks fast, you can’t understand her sometimes.”

          The jury awarded the Whiddons $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 Whiddon will suffer in the future.

          Appellate courts have affirmed damages awarded for physical impairment where the plaintiff suffered an injury which affected the plaintiff’s ability to speak or communicate.  See Ramirez v. Fifth Club, Inc., 144 S.W.3d 574, 592 (Tex. App.—Austin 2004), rev’d in part on other grounds, 49 Tex. Sup. Ct. J. 863, 2006 Tex. LEXIS 638 (Tex. June 30, 2006);[3] Roberts v. Williamson, 52 S.W.3d 343, 350-51 (Tex. App.—Texarkana 2001), rev’d in part on other grounds, 111 S.W.3d 113 (Tex. 2003);[4] see also SunBridge Healthcare, 160 S.W.3d at 253 (suggesting remittitur from $497,000 to $150,000 for physical impairment award because of limited duration of impairment).

          Thus, the evidence that Whiddon’s ability to speak has been impaired by her tongue injury is evidence which “would enable reasonable and fair-minded people” to award damages for physical impairment.  Id.

          It goes without saying that an inability to speak or communicate clearly can impact a person’s suitability for employment.  Thus, appellate courts have held that damages for loss of earning capacity may be recovered where the plaintiff suffered an injury which affected the plaintiff’s ability to speak or communicate.  See, e.g., Roberts, 52 S.W.3d at 350-51; Farley v. M. M. Cattle Co., 549 S.W.2d 453, 459-60 (Tex. Civ. App.—Waco 1977, writ ref’d n.r.e.).

          The jury heard the testimony about how Whiddon’s tongue injury affected her ability to speak.  It was for the jurors to apply “their common knowledge and sense of justice” to determine the amount of damages the Whiddons should be awarded for lost earning capacity.  See McIver, 169 S.W.2d at 712; Pipgras, 832 S.W.2d at 366; C.T.W., 809 S.W.2d at 794.  Therefore, the testimony about Whiddon’s impaired ability to speak is evidence which “would enable reasonable and fair-minded people” to award damages for lost earning capacity.  See Roberts, 52 S.W.3d at 350-51; Farley, 549 S.W.2d at 459-60.

Nicole Thomas

          Durham contends that the record contains no evidence that Nicole Thomas suffered past physical impairment, lost earning capacity, or future disfigurement.

          Thomas testified that she experienced back, neck, and shoulder pain as a result of the accident.  The neck and shoulder pain subsided, but the back pain has continued.  Thomas testified that her back pain has worsened each year.  When she sits for more than ten minutes at a time without moving, she experiences numbness and pain, which sometimes becomes “unbearable.”  According to an orthopedic clinic report made about a year after the accident, Thomas complained at that time that “[s]he used to play basketball, volleyball, and run track (hurdles).  These now cause her pain, although she has played basketball since the accident.”

          An orthopedic surgeon testified that Thomas has a “bilateral pars defect” exacerbated by spondylolisthesis in the L5 region.  The surgeon could not say whether this pars defect existed before the accident, but the surgeon did opine that Thomas suffered a lower back injury in this region which caused the symptoms she is now experiencing.[5]  The surgeon recommends that Thomas undergo a lumbosacral fusion to treat these symptoms.

          The jury awarded the Thomases $25,000 in damages for physical pain, mental anguish, and physical impairment suffered in the past.  The jury awarded them $425,000 in damages for physical pain, mental anguish, physical impairment, and lost earning capacity which Thomas will suffer in the future.

          The evidence that Thomas’s back injury has caused her to experience pain while participating in athletics is evidence which “would enable reasonable and fair-minded people” to award damages for past and future physical impairment.  See Plainview Motels, 127 S.W.3d at 39; Harris County v. Smith, 66 S.W.3d 326, 331-32 (Tex. App.—Houston [1st Dist.] 2001), rev’d on other grounds, 96 S.W.3d 230 (Tex. 2002); Molina v. Moore, 33 S.W.3d 323, 329 (Tex. App.—Amarillo 2000, no pet.); Lawson-Avila Constr., Inc. v. Stoutamire, 791 S.W.2d 584, 599-600 (Tex. App.—San Antonio 1990, writ denied).

          Appellate courts have affirmed damages awarded for lost earning capacity where the plaintiff suffered a back injury which continued to cause pain, numbness, and other symptoms.  See Pilgrim’s Pride Corp., 134 S.W.3d at 904; Strahan v. Davis, 872 S.W.2d 828, 833 (Tex. App.—Waco 1994, writ denied); Tri-State Motor Transit Co. v. Nicar, 765 S.W.2d 486, 492-93 (Tex. App.—Houston [14th Dist.] 1989, no writ).  The jury heard the evidence about how Whiddon’s back injury has affected her.  It was for the jurors to apply “their common knowledge and sense of justice” to determine the amount of damages the Thomases should be awarded for lost earning capacity.  See McIver, 169 S.W.2d at 712; Pipgras, 832 S.W.2d at 366; C.T.W., 809 S.W.2d at 794.  Therefore, the testimony about Thomas’s back injury and numbness is evidence which “would enable reasonable and fair-minded people” to award damages for lost earning capacity.  See Pilgrim’s Pride Corp., 134 S.W.3d at 904; Strahan, 872 S.W.2d at 833; Tri-State Motor Transit Co., 765 S.W.2d at 492-93.

          Appellate courts have affirmed damages awarded for physical disfigurement where the plaintiff has suffered or will suffer scarring from surgery performed as a result of the injuries at issue.  See, e.g., Tesfa v. Stewart, 135 S.W.3d 272, 276-77 (Tex. App.—Fort Worth 2004, pet. denied); Wal-Mart Stores, Inc. v. Tinsley, 998 S.W.2d 664, 673 (Tex. App.—Texarkana 1999, pet. denied); Nw. Mall, Inc. v. Lubri-Lon Int’l, Inc., 681 S.W.2d 797, 804 (Tex. App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.).  Therefore, the orthopedic surgeon’s testimony that Thomas will require back surgery is evidence which “would enable reasonable and fair-minded people” to award damages for future disfigurement.  Id.

Summary

          The record contains sufficient evidence which “would enable reasonable and fair-minded people” to award damages for each of the elements Durham challenges in its first issue.  Thus, the court did not err by submitting a broad-form damages question for each plaintiff.  Cf. Romero, 166 S.W.3d at 226-27; Smith, 96 S.W.3d at 233-34.  Accordingly, we overrule Durham’s first issue.

FACTUAL SUFFICIENCY

          Durham contends in its second issue that the evidence is factually insufficient to support the jury’s award of damages for each of the elements challenged in Durham’s first issue and for the jury’s award of past medical expenses.

          “Under traditional factual sufficiency standards, a court determines if a finding is so against the great weight and preponderance of the evidence that it is manifestly unjust, shocks the conscience, or clearly demonstrates bias.”  In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).

          Durham contends that there is factually insufficient evidence that Beettner suffered past or future physical impairment or lost earning capacity.  Durham also contends that the jury’s award of $500 for past medical expenses is excessive.

          Durham argues that the evidence is factually insufficient on the elements of past and future physical impairment and lost earning capacity because there is evidence that: (1) Beettner was having no trouble with the mechanics of his knee and no swelling or instability nine days after the accident when he had his initial visit with an orthopedic surgeon; (2) Beettner had broken nine bones before this accident and has a high tolerance for pain; (3) Beettner is not taking pain medication for his knee; (4) the knee injury did not affect his grades or his ability to play high school baseball; and (5) the knee injury has not affected his plans to attend community college and has not caused him to miss work.

          However, in light of 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, we hold that the evidence is factually sufficient to support the jury’s award of damages for past and future physical impairment.  See Plainview Motels, 127 S.W.3d at 39; Schindler Elevator Corp., 78 S.W.3d at 412.

          In light of Beettner’s testimony that he frequently experiences pain while walking, we hold that the evidence is factually sufficient to support the jury’s award of damages for lost earning capacity.  Allright, 784 S.W.2d at 945; Mo. Pac. R.R., 774 S.W.2d at 689-90; Padget, 727 S.W.2d at 712; see also Pipgras, 832 S.W.2d at 366; C.T.W., 809 S.W.2d at 794.

          Durham contends that the jury’s award of $500 for past medical expenses is excessive because the only evidence admitted with regard to Beettner’s medical expenses consisted of: (1) an affidavit of $195 in expenses for an orthopedic surgeon; and (2) the parties’ stipulation that “there are no other past medical bills for Michael Beettner for emergency room treatment other than the two stipulated amounts of $25 and $88.”[6]

          Beettner also offered an affidavit from a records custodian that the billing records from his emergency room visit were “voided.”  Beettner argues on appeal that the jury could look to Turner’s emergency room bills and infer that he would have had an ER physician charge “of about $215,” which is the amount Turner was billed by her ER physician.[7]  However, this argument ignores the binding effect of the parties’ stipulation.

          “A stipulation is ‘an agreement, admission, or concession made in a judicial proceeding by the parties or their attorneys respecting some matter incident thereto.’”  Shepherd v. Ledford, 962 S.W.2d 28, 33 (Tex. 1998) (quoting Ortega-Carter v. Am. Int’l Adjustment Co., 834 S.W.2d 439, 441-42 (Tex. App.—Dallas 1992, writ denied)); Travelers Indem. Co. v. Starkey, 157 S.W.3d 899, 903-04 (Tex. App.—Dallas 2005, pet. denied).  Under Rule of Civil Procedure 11, a stipulation is enforceable if it is in writing, signed, and filed as part of the record, or made in open court and entered of record.  See Tex. R. Civ. P. 11; Travelers Indem. Co., 157 S.W.3d at 904.  A stipulation is binding on the parties and the court.  See Shepherd, 962 S.W.2d at 33; Travelers Indem. Co., 157 S.W.3d at 904; Houston Lighting & Power Co. v. City of Wharton, 101 S.W.3d 633, 641 (Tex. App.—Houston [1st Dist.] 2003, pet. denied).

          Beettner stipulated on the record that his only costs “for emergency room treatment” amounted to $113.  He cannot now contend that the jury could look to Turner’s medical records as evidence of how much he was charged by the ER physician.  Id.  Therefore, the evidence is factually insufficient to support the jury’s award to the Beettners of $500 for past medical expenses.  Accordingly, we will suggest a remittitur of $192. See Tex. R. App. P. 46.3; Torrington Co. v. Stutzman, 46 S.W.3d 829, 851 (Tex. 2000); Burke v. Union Pac. Res. Co., 138 S.W.3d 46, 72 (Tex. App.--Texarkana 2004, pet. denied).

          Durham contends that there is factually insufficient evidence that Whiddon suffered past or future physical impairment or lost earning capacity.  Durham also contends that the jury’s award of $3,000 for past medical and dental expenses is excessive.

          Durham argues that the evidence is factually insufficient on the elements of past and future physical impairment and lost earning capacity because there is evidence that Whiddon: (1) has maintained straight-A’s in school; (2) is taking night courses at a community college; (3) is on the swim team and student council; and (4) has been coordinating youth activities at her church.  However, in light of the testimony from Whiddon and her mother about Whiddon’s impaired ability to speak, we hold that the evidence is factually sufficient to support the jury’s award of damages for past and future physical impairment.  See SunBridge Healthcare, 160 S.W.3d at 253; Ramirez, 144 S.W.3d at 592; Roberts, 52 S.W.3d at 350-51.  We likewise hold that the evidence is factually sufficient to support the jury’s award of damages for lost earning capacity.  See Roberts, 52 S.W.3d at 350-51; Farley, 549 S.W.2d at 459-60; see also Pipgras, 832 S.W.2d at 366; C.T.W., 809 S.W.2d at 794.

          Durham contends that the jury’s award of $3,000 for past medical and dental expenses is excessive because the only evidence admitted with regard to Whiddon’s expenses consisted of medical expense affidavits of: (1) $348 for ambulance services; (2) $532 for emergency room services; (3) $191 for dental services (Oct. to Nov. 1998); (4) $70 for dental services (July 1999); (5) $1,379[8] for dental services (Apr. to May 2003).  Whiddon also offered in evidence two receipts totaling $11.53 for medicines.  This evidence accounts for $2,531.53 in medical and dental expenses.

          Nevertheless, Whiddon responds that the evidence shows that her actual expenses exceeded the $3,000 award because a dentist, Dr. Hall, testified that he bonded her two injured teeth for $70 in July 1999 and these teeth would require re-bonding every two years.  However, Dr. Hall also testified that another dentist, Dr. Chuoke, re-bonded Whiddon’s teeth in 2003.  Dr. Chuoke’s charges for this procedure are included within the $1,379 charged for dental services from April to May 2003 as indicated above.  There is no evidence in the record that Whiddon’s teeth were re-bonded in 2001 or on any other occasion before the January 2004 trial.

          Therefore, the evidence is factually insufficient to support the jury’s award to the Whiddons of $3,000 for past medical expenses.  Accordingly, we will suggest a remittitur of $468.47. See Tex. R. App. P. 46.3; Torrington Co., 46 S.W.3d at 851; Burke, 138 S.W.3d at 72.

          Durham contends that there is factually insufficient evidence that Thomas suffered past physical impairment, lost earning capacity, or future disfigurement.  Durham also contends that the jury’s award of $10,000 for past medical expenses is excessive.

          Durham argues that the evidence is factually insufficient on the element of past physical impairment and lost earning capacity because Thomas testified that she was able to play volleyball and basketball after sitting out for a year without “aggravating” her back injury or making it worse.  However, in light of Thomas’s testimony that her back injury has caused her to experience pain while participating in athletics, that her back pain has worsened, and that she is experiencing numbness in her leg, we hold that the evidence is factually sufficient to support the jury’s award of damages for past physical impairment.  See Plainview Motels, 127 S.W.3d at 39; Smith, 66 S.W.3d at 331-32; Molina, 33 S.W.3d at 329; Lawson-Avila Constr., 791 S.W.2d at 599-600.

          We likewise hold that the evidence is factually sufficient to support the jury’s award of damages for lost earning capacity.  See Pilgrim’s Pride Corp., 134 S.W.3d at 904; Strahan, 872 S.W.2d at 833; Tri-State Motor Transit Co., 765 S.W.2d at 492-93; see also Pipgras, 832 S.W.2d at 366; C.T.W., 809 S.W.2d at 794.

          With regard to the Thomases’ claim for damages for future disfigurement, Durham argues only that the evidence is factually insufficient because the orthopedic surgeon’s testimony is conclusory on its face.  However, we have already rejected this argument.  Based on the surgeon’s testimony that Thomas will require a lumbosacral fusion, we hold that the evidence is factually sufficient to support the jury’s award of damages for future disfigurement.  See Wal-Mart Stores, 998 S.W.2d at 673; Nw. Mall, 681 S.W.2d at 804.

          Durham contends that the jury’s award of $10,000 for past medical expenses is excessive because the evidence supports an award for only $4,094.  However, the documentary evidence admitted shows that the Thomases incurred the following expenses: (1) $125 for pediatrician; (2) $3,019 for orthopedic services; (3) $600 for a CT scan; (4) $348 for emergency room treatment; (5) $362 for neurologist; (6) $387 for ambulance;[9] and (7) $215 for ER physician.  This evidence amounts to $5,056 in past medical expenses.

          Durham does not challenge any of the listed evidence as not being part of the Thomases’s reasonable and necessary medical costs.  Thomas concedes that a remittitur of $4,944 is warranted.  Therefore, because the evidence is factually insufficient to support the jury’s award to Thomas of $10,000 for past medical expenses, we will suggest a remittitur of $4,944. See Tex. R. App. P. 46.3; Torrington Co., 46 S.W.3d at 851; Burke, 138 S.W.3d at 72.

          The record contains factually sufficient evidence to support the jury’s award of damages to the Beettners and the Whiddons for past and future physical impairment and for lost earning capacity.  The record likewise contains factually sufficient evidence to support the jury’s award of damages to the Thomases for past physical impairment, lost earning capacity, and future disfigurement.

          However, the evidence is factually insufficient to support the damages awarded for past medical expenses.  Therefore, we will suggest a remittitur of $192 for the Beettners’ past medical expenses; we will suggest a remittitur of $468.47 for the Whiddons’ past medical expenses; and we will suggest a remittitur of $4,944 for the Thomases’ past medical expenses.  Accordingly, we sustain Durham’s second issue in part and overrule it in part.

ATTORNEY’S FEES

          Durham contends in its fourth issue that the court abused its discretion by awarding attorney’s fees to Appellees because they failed to plead and prove a claim for attorney’s fees to the jury.  Durham contends in its fifth issue that the court abused its discretion by awarding attorney’s fees under the Uniform Declaratory Judgments Act because Appellees pursued a post-trial claim for declaratory relief solely as a basis for obtaining attorney’s fees.

          The Uniform Declaratory Judgments Act provides in pertinent part:

          A person . . . whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the . . .  statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.

Tex. Civ. Prac. & Rem. Code Ann. § 37.004(a) (Vernon 1997).  Thus, the constitutionality of a statute may be challenged under this Act.  See, e.g., Neeley v. W. Orange-Cove Consol. Indep. Sch. Dist., 176 S.W.3d 746 (Tex. 2005).  Reasonable and necessary attorney’s fees may be recovered in suits brought under this Act.  See Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (Vernon 1997).

          However, “[t]here is no basis for declaratory relief if the party seeking such relief is already seeking a different, enforceable remedy, and a judicial declaration would add nothing to what would be implicit or express in a final judgment for the enforceable remedy” already being sought.  Strayhorn v. Raytheon E-Sys., Inc., 101 S.W.3d 558, 572 (Tex. App.—Austin 2003, pet. denied) (quoting Universal Printing Co. v. Premier Victorian Homes, Inc., 73 S.W.3d 283, 296 (Tex. App.—Houston [1st Dist.] 2001, pet. denied)); accord U.S. Bank v. Prestige Ford Garland Ltd. P’ship, 170 S.W.3d 272, 278 (Tex. App.—Dallas 2005, no pet.).  Thus, it is an abuse of discretion to award attorney’s fees under the Uniform Declaratory Judgments Act if the claim for declaratory relief is urged solely as a vehicle to obtain attorney’s fees.  See U.S. Bank, 170 S.W.3d at 278; Raytheon E-Sys., 101 S.W.3d at 572.

          Here, Appellees urged a claim for declaratory relief to determine whether the current prejudgment and postjudgment interest statutes are retroactive laws which cannot be constitutionally applied in their case.  However, Appellees’ constitutional claims could have easily been raised under their prior pleadings in conjunction with their request for prejudgment and postjudgment interest and without the necessity of a separate claim for declaratory relief.  See, e.g., In re B.R.S., 166 S.W.3d 373, 374 (Tex. App.—Waco 2005, no pet.); In re N.A.S., 100 S.W.3d 670, 671 (Tex. App.—Dallas 2003, no pet.); Willard v. Davis, 881 S.W.2d 907, 910 (Tex. App.—Fort Worth 1994, orig. proceeding).  Therefore, we conclude that Appellees urged their claim for declaratory relief solely as a vehicle to obtain attorney’s fees.  See U.S. Bank, 170 S.W.3d at 278; Raytheon E-Sys., 101 S.W.3d at 572.

          For this reason, the court abused its discretion by awarding Appellees attorney’s fees under the Uniform Declaratory Judgments Act.  Id.  Attorney’s fees are not recoverable in a personal injury suit premised on negligence.  See Gulf States Utils. Co. v. Low, 79 S.W.3d 561, 568 (Tex. 2002); City of Houston v. Woods, 138 S.W.3d 574, 582-83 (Tex. App.—Houston [14th Dist.] 2004, no pet.).  Appellees assert no other legal basis to support the trial court’s award of attorney’s fees.

          Therefore, the court abused its discretion by awarding attorney’s fees to Appellees.  Accordingly, we sustain Durham’s fourth and fifth issues.

RETROACTIVE LAWS

          Durham contends in its third issue that the court erred by declaring the prejudgment and postjudgment interest statutes to be unconstitutional retroactive laws as applied in Appellees’ case.  The trial court declared these statutes unconstitutional insofar as section 304.1045 of the Finance Code now prohibits the award of prejudgment interest on future damages and section 304.003 has been amended so that the current rate of interest for a judgment has been reduced from ten percent to five percent per annum.

          In 1998 when the accident occurred, section 304.102 of the Finance Code provided, “A judgment in a wrongful death, personal injury, or property damage case must include prejudgment interest.”  Act of May 24, 1997, 75th Leg., R.S., ch. 1008, § 1, sec. 304.102, 1997 Tex. Gen. Laws 3091, 3435 (amended 1999) (current version at Tex. Fin. Code Ann. § 304.102 (Vernon Supp. 2005)).[10]  Under section 304.102 and its predecessor, courts held that prejudgment interest was recoverable on future damages.  See Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 530 (Tex. 1998); Brookshire Grocery Co. v. Smith, 99 S.W.3d 819, 825 (Tex. App.—Beaumont 2003, pet. denied); Reliable Consultants, Inc. v. Jaquez, 25 S.W.3d 336, 347 (Tex. App.—Austin 2000, pet. denied).

          In 2003 however, the Legislature effectively overruled these decisions by enacting section 304.1045 of the Finance Code which provides, “Prejudgment interest may not be assessed or recovered on an award of future damages.”  Tex. Fin. Code Ann. § 304.1045 (Vernon Supp. 2005).  Section 304.1045 applies to “any case in which a final judgment is signed or subject to appeal on or after the effective date of this Act.”  Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 6.04, 2003 Tex. Gen. Laws 847, 862.  The effective date of the statute was September 1, 2003.  Id. § 23.02(a), 2003 Tex. Gen. Laws 847, 898.  The judgment in this case was not signed until January 6, 2005.

          The postjudgment interest rate in 1998 was ten percent per annum.[11]  See Act of May 24, 1997, 75th Leg., R.S., ch. 1008, § 1, sec. 304.003(c)(2), 1997 Tex. Gen. Laws 3091, 3435 (amended 2003) (current version at Tex. Fin. Code Ann. § 304.003(c)(2) (Vernon Supp. 2005)).  The 2003 amendment to section 304.003(c) halved the applicable rate so that judgments now bear interest at the rate of five percent per annum.[12]  See Tex. Fin. Code Ann. § 304.003(c)(2).  This amendment took effect on September 1, 2003.  See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 23.02(a), 2003 Tex. Gen. Laws 847, 898.

          Article I, section 16 of the Texas Constitution provides, “No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.”  Tex. Const. art. I, § 16.  A statute violates the “retroactive law” prohibition of article I, section 16 if it “operate[s] retroactively to deprive or impair vested substantive rights acquired under existing laws, or create[s] new obligations, impose[s] new duties, or adopt[s] new disabilities in respect to transactions or considerations past.”  In re J.B.W., 99 S.W.3d 218, 223 (Tex. App.—Fort Worth 2003, pet. denied) (quoting In re Tex. Dep’t of Protective & Regulatory Servs., 71 S.W.3d 446, 450 (Tex. App.—Fort Worth 2002, orig. proceeding) (per curiam));[13] accord Price Pfister, Inc. v. Moore & Kimmey, Inc., 48 S.W.3d 341, 353 (Tex. App.—Houston [14th Dist.] 2001, pet. denied).

          A “vested right” implies an immediate right or entitlement—it is not an expectation or a contingency.  “When the authority granting the right has the power and discretion to take that right away, it cannot be said to be a vested right.”  Engrained in the concept of vested rights is the idea of certainty.  When a lawmaking power can declare that a right does not exist, the right is not “fixed or vested.”  Further, the triggering date of a vested right must be readily ascertainable.  The filing of a lawsuit in order to obtain relief or pursue a remedy is generally held not to create or destroy vested rights; the triggering event for the vesting of a right is the resolution of the controversy and the final determination—not the filing of the suit.

Houston Indep. Sch. Dist. v. Houston Chronicle Publ’g Co., 798 S.W.2d 580, 589 (Tex. App.—Houston [1st Dist.] 1990, writ denied) (quoting Ex parte Abell, 613 S.W.2d 255, 262  (Tex. 1981) (orig. proceeding)) (citing McCain v. Yost, 155 Tex. 174, 284 S.W.2d 898, 900 (1955)) (other citations omitted).

          Here, Appellees’ “right” to prejudgment and postjudgment interest was not “vested” until entry of the trial court’s judgment.[14]  See id.; accord Walls v. First State Bank, 900 S.W.2d 117, 121-22 (Tex. App.—Amarillo 1995, writ denied).  Therefore, the court erred by holding that the prejudgment and postjudgment interest statutes are unconstitutional retroactive laws as applied in Appellees’ case.  See Walls, 900 S.W.2d at 121-22; Houston Indep. Sch. Dist., 798 S.W.2d at 589-90.  Accordingly, we sustain Durham’s third issue and do not reach Durham’s sixth issue concerning the summary judgment.

PREJUDGMENT INTEREST AWARD

          Durham contends in its seventh issue that the court erred by awarding prejudgment interest on Appellees’ award of court costs and attorney’s fees.

          Because we have concluded that Appellees are not entitled to recover attorney’s fees, they necessarily are not entitled to recover prejudgment interest for their attorney’s fees.

          Prejudgment interest has been defined as “additional damages for the loss of use of money due as damages during the period between the accrual of the claim and the date of judgment.”  Embrey v. Royal Indem. Co., 986 S.W.2d 729, 732 (Tex. App.—Dallas 1999) (quoting LaCoure v. LaCoure, 820 S.W.2d 228, 237 (Tex. App.—El Paso 1991, writ denied)), aff’d, 22 S.W.3d 414 (Tex. 2000); accord Chilton Ins. Co. v. Pate & Pate Enters., 930 S.W.2d 877, 897 (Tex. App.—San Antonio 1996, writ denied); Beutel v. Dallas County Flood Control Dist., 916 S.W.2d 685, 696 (Tex. App.—Waco 1996, writ denied).  Therefore, we hold that prejudgment interest should be calculated based on the past damages awarded.  Court costs should not be included in this calculation.

          Accordingly, we sustain Durham’s seventh issue.

Conclusion

The record contains legally and factually sufficient evidence to support the jury’s award of damages for Beettner’s and Whiddon’s past and future physical impairment and lost earning capacity and for Thomas’s past physical impairment, lost earning capacity, and future disfigurement.  Accordingly, we affirm that portion of the judgment which awards these elements of damages

The evidence is factually insufficient with regard to the damages awarded to Appellees for past medical expenses.  Therefore, we suggest a remittitur of $5,604.47 consisting of: (1) $192 for Beettner’s past medical expenses; (2) $468.47 for Whiddon’s past medical expenses; and (3) $4,944 for Thomas’s past medical expenses.  Therefore, if Appellees file a remittitur of $5,604.47 with the Clerk of this Court within twenty-one (21) days after the date of this opinion, we will modify the trial court’s judgment to award damages for past medical expenses of $7,895.53.[15]

However, if Appellees fail to make the suggested remittitur, we will reverse the judgment and remand this cause for a new trial.  See Tex. R. App. P. 44.1(b); Estrada v. Dillon, 44 S.W.3d 558, 562 (Tex. 2001) (per curiam).

We reverse the judgment insofar as it awards Appellees’ attorney’s fees and render judgment that Appellees take nothing on their claim for attorney’s fees.

We reverse the judgment insofar as it awards prejudgment interest and render judgment that Appellees recover prejudgment interest on their past damages but not on court costs.  We reverse the judgment insofar as it awards postjudgment interest and render judgment that postjudgment interest shall accrue on the judgment at the rate of five percent per annum.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed in part, Reversed and Rendered in part

          Remittitur suggested

Opinion delivered and filed July 19, 2006

[CV06]

---

[1]           The charge instructed the jury to assess Appellees’ damages for “loss of earnings or earning capacity” in the future.  Although lost earnings and lost earning capacity are distinct elements of damages, the arguments and authorities in the appellate briefs and the trial court’s inclusion of these elements as future damages both support a conclusion that that the issue here concerns loss of earning capacity rather than loss of earnings.  Cf. Koko Motel, Inc. v. Mayo, 91 S.W.3d 41, 51 (Tex. App.—Amarillo 2002, pet. denied) (“lost wages or earnings refers to the actual loss of income due to an inability to perform a specific job from the time of injury to the time of trial”) (emphasis added).  

[2]           Appellees also contend that the following excerpt from the reporter’s record shows that Whiddon’s impaired speech was demonstrated for the jury by her inability to plainly enunciate the word “Ford” during direct examination.  However, the record is not clear on this issue.  Whiddon testified that the accident happened near “the Cleburne Ford house.”  Then the following transpired:

            Counsel: The Cleburne what?

            Whiddon:            Cleburne Ford house.

            Counsel: Ford?

            Whiddon:            Yeah.

            Counsel: Oh, the Ford dealership.

It is unclear from this record whether Appellees’ counsel’s apparent confusion stemmed from a misunderstanding of the phrase Whiddon used to describe the dealership or from Whiddon’s alleged “difficulty saying the word ‘Ford,’” as Appellees contend in their brief.  Counsel could have eliminated any confusion in this regard by asking that the record be made to reflect that Whiddon was having difficulty saying this word, if that were the case.  See Piotrowski v. Minns, 873 S.W.2d 368, 370 (Tex. 1993) (“At every stage of the proceedings in the trial court, litigants must exercise some diligence to ensure that a record of any error will be available in the event that an appeal will be necessary.”).

[3]           The petitioners in Ramirez did not challenge the jury’s award of damages for physical impairment in the Supreme Court.  See Fifth Club, Inc. v. Ramirez, 49 Tex. Sup. Ct. J. 863, 869, 2006 Tex. LEXIS 638, at *23-25 (Tex. June 30, 2006) (affirming award of future mental anguish damages).

[4]           The Supreme Court in Roberts reversed only on the lower court’s holding “that parents may recover for the loss of filial consortium” resulting from a non-fatal injury to a child.  See Roberts v. Williamson, 111 S.W.3d 113, 114-15 (Tex. 2003).

[5]           Durham contends as part of its first issue that the orthopedic surgeon’s testimony is “no evidence” because it is conclusory.  Although an objection must be made to challenge the reliability of an expert’s testimony, no trial objection is required “[w]hen the testimony is challenged as conclusory or speculative and therefore non-probative on its face.”  Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004).  Expert testimony is considered “conclusory or speculative” when it has no factual substantiation in the record.  See United Servs. Auto. Ass’n v. Croft, 175 S.W.3d 457, 463-64 (Tex. App.—Dallas 2005, no pet.); Gabriel v. Lovewell, 164 S.W.3d 835, 846 (Tex. App.—Texarkana 2005, no pet.).  Here, the orthopedic surgeon based her opinions on her 2 physical examinations of Thomas, Thomas’s reports of her symptoms and medical history, CT scans, x-rays, and Thomas’s progress in physical therapy.  Accordingly, we reject Durham’s contention that the surgeon’s testimony on its face is conclusory or speculative.  See Welch v. McLean, 191 S.W.3d 147, 157-59 (Tex. App.—Fort Worth 2005, no pet.); United Servs. Auto. Ass’n, 175 S.W.3d at 464-67; Gabriel, 164 S.W.3d at 846.

[6]           The parties made this stipulation on the record in response to a note from the jury asking, “Are there .  .  .  other past medical bills for Michael Beettner for emergency room treatment?”

[7]           Beettner and Turner were treated at the same emergency room.

[8]           The affidavit and accompanying records for Dr. Chuoke reflect total billings of $1,415.  However, the last entry on the statement is for “Prophylaxis, Adult” in the amount of $36.  Apparently, this last entry was not for Whiddon’s treatment.

[9]           The record actually contains 2 affidavits admitted as Plaintiffs’ Exhibits 11 and 13 for the same $387 ambulance bill.  The court also admitted 2 exhibits regarding Thomas’s orthopedic care: Plaintiffs’ Exhibit 4 for $2,429 in services provided from October 18, 1999 to December 13, 1999; and Plaintiffs’ Exhibit 142 for $3,019 in services provided from October 18, 1999 to June 5, 2003.

[10]          Section 304.102 currently provides, “A judgment in a wrongful death, personal injury, or property damage case earns prejudgment interest.”  Tex. Fin. Code Ann. § 304.102 (Vernon Supp. 2005).

[11]          More precisely, the interest rate was 10 percent per annum if the published auction rate for treasury bills was less than 10 percent.  The applicable rate would be 20 percent if the auction rate was more than 20 percent.  See Act of May 24, 1997, 75th Leg., R.S., ch. 1008, § 1, sec. 304.003(c), 1997 Tex. Gen. Laws 3091, 3435 (amended 2003) (current version at Tex. Fin. Code Ann. § 304.003(c) (Vernon Supp. 2005)).

[12]          Another amendment to section 304.003 is that the applicable rate is now determined with reference to the “prime rate as published by the Federal Reserve Bank of New York” rather than the t-bill auction rate.  See Tex. Fin. Code Ann. § 304.003(c).  The applicable rate is 5 percent if the prime rate is less than 5 percent or 15 percent if the prime rate is more than 15 percent.  Id.

[13]          The original quotation is found in Ex parte Abell, 613 S.W.2d 255, 260  (Tex. 1981) (orig. proceeding).

[14]          In fact, the jury did not even determine that Appellees were entitled to damages until after the effective date of the amendments to the prejudgment and postjudgment interest statutes.

[15]          This modified award would consist of $308 for Beettner’s past medical expenses, $2,531.53 for Whiddon’s past medical expenses, and $5,056 for Thomas’s past medical expenses.

rtionment Plan provided that the “Bus Crash Claimants” (which included the Plaintiffs) “may elect to accept the percentage of the Liability Fund [the $5 million insurance proceeds and accrued interest] specifically assigned to that individual’s claims by the mediator as set forth in the Apportionment Schedule.”  It also provided:  “Any Bus Crash Claimants may elect to decline acceptance of the percentage of the Liability Fund specifically assigned to that individual’s claim in the Apportionment Schedule,” in which case the claimant “will be bound by the terms and conditions of the Litigation Plan.”  Some of the bus passengers accepted the mediator’s assigned percentages and were paid under the apportionment schedule, but all of the Plaintiffs chose to have their claims against Central Texas and Cummings resolved under the Litigation Plan.  About one-half of the $5 million was allocated in the Apportionment Plan; the other half was held for those participating in the Litigation Plan.

3.  The Litigation Plan

Under the Litigation Plan, the claimants were to try their cases to a verdict before a special judge and under procedural rules agreed upon by all the participants.  The claimants were to recover from the fund left over after payment of the apportionment claims, which was approximately $2.5 million and was termed the Litigation Fund.  Their recovery was capped at 110% of the percentage assigned by the mediator.

The Litigation Plan provided:

4)         Each participant in the Litigation Plan agrees that any recovery from the Litigation Fund will necessitate that the claimant prove by a preponderance of the evidence the following factual issues:

a.         that the negligence of Central Texas Trails, Inc., Kincannon Enterprises, Inc., Central Texas Bus Lines, Inc., or Johnny M. Cummings was a proximate cause of the participant’s injuries and/or damages; and

b.         the amount of damages suffered by the claimant as a result of that negligence.

            Neither the Litigation Plan nor the bankruptcy court’s approval order included a schedule or deadlines for the Plan’s implementation and disposition.  In October 2004, after having confirmed Central Texas’ reorganization plan, the bankruptcy court entered a final decree closing the bankruptcy case, even though nothing had occurred under the Litigation Plan.

The Plaintiffs’ case against MCI was tried in October 2005.[15]  In offers of proof, MCI elicited testimony from many of the Plaintiffs about their proofs of claims against Central Texas in the bankruptcy case.  The Plaintiffs testified that they had not made claims in the bankruptcy case against Central Texas, that they did not blame Cummings for the accident, and that they were not aware of the details of the Apportionment Plan.  After the trial, Donnie Hagans, a claimant who had accepted payment under the Apportionment Plan, filed a motion in the bankruptcy court “to withdraw, strike or deny” the Plaintiffs’ proofs of claims based on their inconsistent offer-of-proof testimony.

The bankruptcy court held show-cause hearings in January 2006 on these motions and noted significant flaws in the Litigation Plan:  it did not contain a provision for getting money paid out of the Litigation Fund; it did not provide for the disposition of any leftover funds; and it had no deadlines or schedules.  Thereafter, the Plaintiffs agreed on a “Special Judge,” and the bankruptcy court ordered the Bus Crash Claimants (the Plaintiffs) to submit evidence to the Special Judge by February 6, 2006 and to appear on that date at the office of one of the attorneys for several of the Plaintiffs to present oral argument or testimony before the Special Judge.  Central Texas was given the opportunity to appear before and submit evidence to the Special Judge; MCI was not.  The Special Judge was given until March 15, 2006 to render a verdict and report and file them with the bankruptcy court.  The order included the following stipulation:

The Litigation Plan Participants [the Plaintiffs] will not move for judgment on the state court verdict prior to the final approval of disbursements, if any, to the Litigation Plan Participants in the Bankruptcy Court absent extenuating circumstances.  The Litigation Plan Participants will not oppose a motion filed by Motor Coach in the state court action for credits on the judgment based upon the “one satisfaction rule” as a result of the receipt of any funds disbursed to them from the Litigation Plan.  However, the Litigation Plan Participants will oppose any motion filed by Motor Coach Industries which seeks to deem funds disbursed form the Litigation Fund to be “settlement credits,” or a settlement under Chapter 33 of the Texas Civil Practice and Remedies Code.  [Emphasis added.]

            The Special Judge rendered a “Special Verdict, Report and Recommendation” after conducting the February 6 “hearing.”  It included a recitation of all of the materials that the Special Judge had reviewed (including the reporter’s record in this case) and a listing of the parties appearing on February 6.  No one appeared on behalf of Central Texas or Cummings.  The Special Judge made the following liability “finding”:

            Based on the materials I have reviewed, it is my determination that the negligence of the bus driver, Mr. Johnny Cummings, was a proximate cause of the accident that produced the Participants’ [Plaintiffs’] injuries and damages.  I further find that Mr. Cummings was acting within the course and scope of his duties for one or more Debtors [Central Texas].  Therefore, under Texas law, one or more Debtors are vicariously liable for his negligence.

            I have not endeavored, based upon my understanding of my duties under this Court’s Order, to make a complete or comparative assessment of all parties potentially liable for causing either the accident or the resulting damages.

            The Special Judge adopted the MCI trial’s jury findings as a cap on the damages award and then made a slight adjustment to the percentages found by the mediator.  The bankruptcy court approved the Special Judge’s finding, and each Plaintiff received within 2% of the amount allocated in the Apportionment Plan, except for Robert Kuryla, whose award was reduced because the jury had awarded him less than his allocation.

            MCI then moved the trial court for a settlement credit for the Central Texas insurance monies paid to the Plaintiffs from the bankruptcy court.  But rather than giving a settlement credit, the trial court recited in the final judgment that it has been “partially satisfied” as to each Plaintiff in the exact amount that each had received from the Litigation Fund.

4.  Chapter 33

As noted above, the statutory scheme under the 1995 version of Chapter 33 applies to this case.  It applied to a broad range of cases, including “any cause of action based on tort in which a defendant, settling person, or responsible third party is found responsible for a percentage of the harm for which relief is sought.”  Act of May 8, 1995, 74th Leg., R.S., ch. 136, § 1, 1995 Tex. Gen. Laws 971, 971 (current version at Tex. Civ. Prac. & Rem. Code Ann. § 33.002 (Vernon Supp. 2007)).  Former section 33.003 provided that the trier of fact shall determine the percentage of responsibility for each claimant, each defendant, each settling person, and each responsible third party who has been joined under section 33.004.  Id. at 1995 Tex. Gen. Laws 971, 972-73 (amended 2003) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 33.003 (Vernon Supp. 2007)); see also Tex. R. Civ. P. 277 (requiring trial court to submit jury question when loss is to be apportioned).  “Settling person” was defined by former section 33.011(5) as “a person who at the time of submission has paid or promised to pay money or anything of monetary value to a claimant at any time in consideration of potential liability . . . for which recovery of damages is sought.”  Act of June 3, 1987, 70th Leg., 1st C.S., ch. 2, § 2.07, 1987 Tex. Gen. Laws 37, 41 (amended 1995 and 2003) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 33.011(5) (Vernon Supp. 2007)).

Former section 33.013 provided, with certain exceptions, that a defendant was liable only for the percentage of responsibility found by the trier of fact, unless the percentage of responsibility exceeded fifty percent, in which case that defendant was jointly and severally liable for all of the claimant’s recoverable damages.[16]  It was therefore plainly in MCI’s interest to have Central Texas’ conduct (or that of Cummings, for whom Central Texas was vicariously liable) submitted to the jury to reduce MCI’s percentage of responsibility, if any, and at a minimum to determine if its percentage of responsibility was under 51%, which would allow it to avoid joint and several liability for all of the Plaintiffs’ damages.  Conversely, because Central Texas was in bankruptcy, it was in the Plaintiffs’ interest to have MCI found 100%, or at least 51%, responsible.

5.  Discussion and Analysis

            Based on the above, we now must determine whether Central Texas was a “settling person” under Chapter 33.  That is, we address whether or not the Litigation Plan was a “settlement” between Central Texas and the Plaintiffs such that Central Texas was a “settling person” whose proportionate responsibility should have been submitted to the jury along with that of MCI.  See C & H Nationwide, Inc. v. Thompson, 903 S.W.2d 315, 320 (Tex. 1994) (“‘settlement’, as used in the Comparative Responsibility Law, means money or anything of value paid or promised to a claimant in consideration of potential liability”).

As a threshold matter, we review MCI’s contention that legally sufficient evidence supported the submission of Central Texas’ proportionate responsibility.  In addition to the statutory definition of settling person, former section 33.002(f) also required sufficient evidence to support the submission of that person’s conduct in a proportionate responsibility question.  Act of May 8, 1995, 74th Leg., R.S., ch. 136, § 1, 1995 Tex. Gen. Laws 971, 972 (amended 2003) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 33.003(b (Vernon Supp. 2007)).  We review that person’s conduct for legal sufficiency.  Olympic Arms, Inc. v. Green, 176 S.W.3d 567, 573 (Tex. App.—Houston [1st Dist.] 2004, no pet.).  MCI points to evidence that Cummings was driving too fast, that he drove the bus into head-on traffic, and that the tread on one of the rear bus tires was too thin for the wet road conditions.  The Plaintiffs make no argument that the evidence was legally insufficient.  We conclude that there is some evidence to support the submission of Central Texas’ conduct in a proportionate responsibility question.

            We begin our settling-person analysis by noting that the Plaintiffs asserted tort claims against Central Texas in their bankruptcy proofs of claims.  MCI asserts that Central Texas’ liability insurer’s tender of the $5 million policy limits to the bankruptcy court was a payment to the Plaintiffs in consideration of Central Texas’ potential liability.  The Plaintiffs argue that the money was tendered not to them, but to the bankruptcy court, and only because the bankruptcy court ordered it.  That is only partially correct.

It is apparent from the various bankruptcy court documents (particularly the Dobelbowers’ various motions relating to the $5 million policy proceeds and ADR procedures and the other parties’ motions and responses relating to ADR) that all of the parties—the Bus Crash Claimants, Central Texas, and its liability insurer—were engaged in extensive, detailed discussions and negotiations over the $5 million and its fair division among all the claimants.  Additionally, it appears that neither Central Texas nor its insurer opposed tendering the $5 million or participating in ADR proceedings to apportion the $5 million.[17]

            Moreover, Central Texas’ Second Amended Plan of Reorganization, which the Plaintiffs voted for and which the bankruptcy court approved, delineated the Bus Crash Claimants as a class of creditors with wrongful death and personal injury damages against Central Texas arising out of the crash and provided:  “The Debtor [Central Texas] shall pay $7,000 annually to this class of creditor for five years.”  These payments began in 2004 and went partly into the Litigation Fund to be distributed under the Litigation Plan.  We are now led to the crucial aspect of our inquiry:  Did the Litigation Fund, which consisted of half of the insurance proceeds and Central Texas’ direct annual payments, and the Litigation Plan, through which each Plaintiff’s claim for a percentage of the Litigation Fund was “adjudicated,” constitute payments to the Plaintiffs in consideration of potential liability and thereby render Central Texas a “settling person”?  (Or more broadly, was the Litigation Plan a settlement between Central Texas and the Plaintiffs?)  We answer “yes.”

The tender of the $5 million to the bankruptcy court (half of which went to the Litigation Fund) and Central Texas’ direct annual payments to the Litigation Fund, were indirect payments to the Plaintiffs in consideration of Central Texas’ potential liability to the Plaintiffs, and the subsequent payments from that fund to the Plaintiffs were not contingent on the outcome of an adversarial or uncertain proceeding.  Cf. Gilcrease v. Garlock, Inc., 211 S.W.3d 448, 452-55 (Tex. App.—El Paso 2006, no pet.) (holding that post-settlement bankruptcies of settling parties did not make settlements contingent and that defendant was entitled to credits, even though settlements had not been paid, and distinguishing settlements contingent on other litigation and uncertain bankruptcy proceedings) (citing McNair v. Owens-Corning Fiberglas Corp., 890 F.2d 753 (5th Cir. 1989), and Cimino v. Raymark Indus., 751 F. Supp. 649 (E.D. Tex. 1990), aff’d in part, vacated in part on other grounds, 151 F.3d 297 (5th Cir. 1998)).

            The Plaintiffs contend that, because the hearing before the Special Judge and the bankruptcy court’s order approving the Special Judge’s report and the disbursements to the Plaintiffs occurred several months after the trial against MCI, there had been no adjudication or disbursements—no payments or promises to pay—out of the Litigation Fund at the time the case was submitted to the jury in the MCI trial.  The statute, however, defines a settling person as one who pays or promises to pay “at any time.”  Thus, we give no weight to the timing of the Litigation Plan’s hearing, verdict, and actual disbursements;[18] as of the time of submission of this case to the jury, the Litigation Plan had been in place for over two years.  We also give no credence to the ipse dixit statement in Central Texas’ reorganization plan that “[s]ome of the bus crash claimants [the Plaintiffs] have not settled their claims against the Debtors [Central Texas]” and continue to be participants in the Litigation Plan.

The Plaintiffs’ other arguments for why the Litigation Plan was not a settlement are that their claims against Central Texas were not settled, but were “adjudicated” under the bankruptcy court’s orders (via the Litigation Plan), that they were required to prove Central Texas’ negligence and their damages to the Special Judge to receive money from the Litigation Fund, and that they were exposed to receiving less money than originally allocated to them by the mediator.  We are not persuaded.

            Although the bankruptcy court entered an order approving the Litigation Plan, that plan was prepared by and agreed to by the Plaintiffs.  Extensive negotiations took place before and after the mediation in which all the Bus Crash Claimants, including the Plaintiffs, agreed to an apportionment schedule in which each claimant was assigned a specific percentage of the Litigation Fund.  Negotiations with Central Texas and its insurer also took place, and in its reorganization plan, Central Texas agreed to pay $7,000 a year for five years to benefit the Litigation Fund.  The Plaintiffs, as a class of creditors, voted for this plan, which also included a provision discharging Central Texas from all debts, including the Plaintiffs’ tort claims.

The Litigation Plan was structured to make the payments from the Litigation Fund to the Plaintiffs appear to be contingent on an adjudicative proceeding, but piercing it reveals no adversarial adjudication or uncertainty to render it contingent, and it has several indicia of a settlement.  Cf. Turoff, 222 S.W.3d at 668 (“But the law on Mary Carter Agreements in Texas has evolved to include agreements that violate the principles laid out in Elbaor even if the precise structure of the agreement does not fit the precise pattern of an agreement previously determined to be in violation of public policy.”).  The money paid into the Litigation Fund was apparently nonrefundable, and thus unconditional; i.e., nothing provided for its return or other disposition if the Plaintiffs did not prove the negligence of Central Texas or Cummings to the Special Judge.  The Litigation Fund was plainly earmarked to be distributed to the Plaintiffs in the approximate percentages agreed to at the 2004 mediation.  We have no reason to believe that the Special Judge acted other than in good faith, but the “hearing” before him was not adversarial.  No interested parties (e.g., Central Texas, Cummings, or MCI) participated to argue that Central Texas and Cummings were not negligent or to contest the Plaintiffs’ injuries or the amount of their damages.[19]  The payments that were to be made to the Plaintiffs as a result of the proceeding before the Special Judge were not contingent so as to render the Litigation Plan not a settlement for purposes of Chapter 33.

We summarize:  As a result of the crash, Central Texas was potentially liable to the Plaintiffs; all of Central Texas’ liability insurance proceeds were earmarked for the crash victims, and half of those proceeds, along with direct payments from Central Texas, were placed in a fund to be allocated among the Plaintiffs under procedures set up and controlled by the Plaintiffs with no adversary; the Plaintiffs voted for Central Texas’ reorganization plan, which discharged all of Central Texas’ debts, including its debts for the Plaintiffs’ tort claims; all of the Plaintiffs received the approximate apportionment percentages that had been agreed to at the original mediation; and the payments were made to the Plaintiffs plainly in consideration of Central Texas’ potential liability to them.  This process was hardly a typical tort settlement, but it was a settlement and Central Texas was a settling person for purposes of Chapter 33.  For these reasons, we hold that Cummings and Central Texas were “settling persons” under Chapter 33 and that the trial court erred in refusing MCI’s request to submit their proportionate responsibility to the jury.  See Omega Contracting, 191 S.W.3d at 837; Olympic Arms, 176 S.W.3d at 575.

            We last address whether the trial court’s error was harmful and warrants reversal.  A reversal is warranted if the trial court denies a proper submission of a settling person’s proportionate responsibility, and the error probably caused the rendition of an improper judgment.  See Tex. R. App. P. 44.1; Olympic Arms, 176 S.W.3d at 576.

We found above that there was legally sufficient evidence of Central Texas’ and Cummings’s negligence.  It is thus probable that the jury would have placed some of the responsibility on them, and if MCI’s proportionate responsibility were found to be less than 51%, it would have been liable for only its percentage of responsibility.  Because the trial court’s erroneous refusal to submit Central Texas or Cummings caused MCI to be 100% liable, that error was reasonably calculated to cause, and probably caused, the rendition of an improper judgment.  See Olympic Arms, 176 S.W.3d at 576.  We sustain in part MCI’s first issue.

V.  Issues Not Addressed

Because of our disposition of MCI’s first issue, we will not address MCI’s factual sufficiency complaints in issues four and five, nor will we address MCI’s second (refusal to permit cross-examination) and seventh (charge error) issues.  See Tex. R. App. P. 47.1.

VI.  Conclusion

            Having sustained in part MCI’s first issue, we reverse the trial court’s judgment and remand this cause for further proceedings consistent with this opinion.

BILL VANCE

            Justice Reyna

            (Chief Justice Gray dissenting)

Reversed and remanded

Opinion delivered and filed September 10, 2008

[CVPM]

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[1]               MCI joined Marcopolo, S.A., a Brazilian company that manufactured component parts of the bus, as a responsible third party, and also filed a third-party action against Marcopolo.  Marcopolo made a special appearance, which the trial court sustained, and it severed MCI’s third-party action against Marcopolo.  In MCI’s appeal of the special appearance ruling, we affirmed the trial court’s decision.  See Motor Coach Indus., Inc. v. Marcopolo, S.A., 2007 WL 4157241 (Tex. App.—Waco Nov. 21, 2007, no pet.).  MCI’s eighth issue contends that, if the trial court erred by granting Marcopolo’s special appearance, its severance of MCI’s third-party action against Marcopolo would have been erroneous and the judgment should be reversed.  Because we affirmed the trial court’s decision on Marcopolo’s special appearance, we overrule MCI’s eighth issue.

[2]               Two Texas Supreme Court decisions have addressed the implied preemption of state common-law tort claims by federal motor vehicle safety standards:  Hyundai Motor Co. v. Alvarado, 974 S.W.2d 13 (Tex. 1998) (holding that the Safety Act and FMVSS 208 did not expressly or impliedly preempt a tort claim based on the manufacturer’s failure to install lap belts); and Great Dane Trailers, Inc. v. Estate of Wells, 52 S.W.3d 737, 744-49 (Tex. 2001) (holding that the Safety Act and FMVSS 108 did not impliedly preempt common-law “conspicuity” tort based on inadequate lighting and reflectors on truck trailer).

[3]               While not determinative, we note that the National Transportation Safety Board, which investigates transportation accidents but has no regulatory power in the area of safety standards for motor vehicles, has repeatedly recommended passenger seatbelts for motor coaches since 1968.

[4]               The Court also construed the Safety Act’s preemption clause and saving clause together, concluding that the Safety Act does not expressly preempt “nonidentical state standards established in tort actions covering the same aspect of performance as an applicable federal standard.”  Geier, 529 U.S. at 868, 120 S.Ct. at 1918.

[5]               And as we stated above, there has been no clear federal expression of opposition to the installation of passenger seatbelts in motor coaches.  In fact, the Plaintiffs have asked us to take judicial notice on appeal of NHTSA’s most recent motor coach safety paper that contradicts MCI’s recitation of NHTSA’s view of passenger seatbelts in motor coach buses.  See Tex. R. Evid. 201; Office of Pub. Util. Counsel v. P.U.C., 878 S.W.2d 598, 600 (Tex. 1994) (court of appeals erred in refusing to take judicial notice of published P.U.C. order) (“To be the proper subject of judicial notice, a fact must be ‘capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.’  Tex. R. Civ. Evid. 201.  Judicial notice is mandatory if ‘requested by a party and [the court is] supplied with the necessary information.’  Tex. R. Civ. Evid. 201.  A court of appeals has the power to take judicial notice for the first time on appeal.”).

That paper is a NHTSA document released on August 6, 2007, entitled “NHTSA’s Approach to Motorcoach Safety,” authored by Roger A. Saul, NHTSA’s director of its Office of Crashworthiness Standards, and filed in NHTSA’s Docket No. 2007-28793 (“Motorcoach Safety Plan”) (available at http://www.nhtsa.dot.gov/staticfiles/DOT/NHTSA/Vehicle%20Safety/Articles/Associated%20Files/481217.pdf).  It begins by noting its goal: “to present a comprehensive review of motorcoach safety issues and the course of action the National Highway Traffic Safety Administration will pursue to most expediently address them.”  Id. at 1.  Regarding seatbelts, the paper states:

Seat belts are another approach for potential improved motorcoach occupant protection in crashes.  Installing seat belts would be the most direct method of retaining passengers within the seating compartment. . . .   Seat belts could also potentially provide protection in multiple crash modes, including rollover, and prevent ejection.

Both Australia and Europe require seat belts on motorcoaches.  Australian Design Rule (ADR) 68 has required lap and shoulder belts since 1994.  In Europe, ECE R.80 Amendment 1 has required a lap belt or a lap/shoulder belt since 1998.

Id. at 12-13.

                The seatbelt section of the paper concludes with NHTSA’s planned approach of conducting crash tests to obtain information to develop FMVSS 210-type performance requirements for the seatbelt assembly and seat anchorages.  Id. at 14.

[6]               MCI also relies on two unpublished trial court decisions that were not appealed:  Surles v. Greyhound Lines, Inc., 2005 WL 1703153 (E.D. Tenn. July 20, 2005), and Schunck v. Delaware Transit Corp., 2007 WL 1748647 (Del. Super. Ct. June 1, 2007).  Surles, like this case, involved a claim that seatbelts should have been installed on an MCI bus operated by Greyhound.  The district court focused—incorrectly under Sprietsma, in our view—on “whether a common law claim would conflict with the agency’s reasons for declining to regulate.”  Surles, 2005 WL 1703153, at *6.  In Sprietsma, the Court took full note of the Coast Guard’s explanation why it did not require propeller guards, and that decision did not convey an authoritative message of a federal policy against propeller guards.  Sprietsma, 537 U.S. at 61-62, 66-67, 123 S.Ct. at 525-28.  Likewise, NHTSA has not conveyed an authoritative message against passenger seatbelts in motor coach buses.  We disagree with Surles.  We disagree as well with the analysis in Schunck, which also concerned a claim that seatbelts should have been installed on a transit bus.  There the trial court focused—incorrectly in our view—on a supposed “10,000 pound weight standard” and on the fact that NHTSA requires passenger restraints on buses weighing less than 10,000 pounds.  Schunck, 2007 WL 1748647, at *3.  That analysis, like the one in Surles, misses the mark set in Myrick and Sprietsma and misapplies Geier.

                We find inapposite Hurley v. Motor Coach Indus., Inc., 222 F.3d 377 (7th Cir. 2000), which involved claims by a bus driver that MCI’s bus was defective because it was equipped only with a two-point lap belt.  Hurley did not involve passenger seatbelts, and because FMVSS 208 does regulate bus driver restraint and protection systems and provides options for bus driver restraint systems, Geier did apply to impliedly preempt the plaintiffs’ claims that a three-point seatbelt, an airbag, and a steel cage for the driver were all required.  Id. at 380-82.

[7]               49 U.S.C. § 30103(e) (“Compliance with any Federal motor vehicle safety standard issued under this subchapter does not exempt any person from any liability under common law.”).

[8]               The term “laminated glass” means two or more pieces of sheet, plate, or float glass bonded together by an intervening layer or layers of plastic material.  It will crack or break under sufficient impact, but the pieces of glass tend to adhere to the plastic.  If a hole is produced, the edges are likely to be less jagged than would be the case with ordinary annealed glass.  ANSI/SAE Z26.1-1996 § 1.6.

The term “tempered glass” means a single piece of specially treated sheet, plate, or float glass possessing mechanical strength substantially higher than annealed glass.  When broken at any point, the entire piece breaks into small pieces that have relatively dull edges as compared to those of broken pieces of annealed glass.  Id. at § 1.21.

[9]               Dr. Khadilkar added that the risk of an “out-of-position” seatbelt injury is far less in a bus than in a car because cars have such a lower mass.

[10]             This case is governed by the version of chapter 33 in effect before July 1, 2003 because this action was filed before that date.  See Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 4.05, 23.02(c), 2003 Tex. Gen. Laws 847, 856, 899.

[11]             See In re Grant Thornton, L.L.P., 2004 WL 114978, at *2 (Tex. App.—Houston [14th Dist.] Jan. 26, 2004, no pet.) (mem. op.) (“The express language of the Proportionate Responsibility Statute in effect for this case requires that responsible third parties be joined in the lawsuit, not simply named or designated. . . .  Sub-sections 33.004(d) and (e) also use the word “join” and discuss filing a third party claim to bring responsible third parties into a lawsuit.”); see id. at n.2 (“Because this action was filed before July 1, 2003, relator was required to serve responsible third parties.”).

[12]             Moreover, in the five-month period after filing its motion for leave, MCI appears to never have served Cummings and Central Texas with MCI’s third-party petition joining them as responsible third parties.  See, e.g., In re Grant Thornton, 2004 WL 114978, at *2 (“Because relator’s designated responsible third parties were never served with a petition and citation, they were not parties to the suit at the time the court purportedly struck them.”).  The Plaintiffs additionally assert that this lack of due diligence raised a statute of limitations problem for MCI as to Cummings and Central Texas.

[13]             The Plaintiffs note that as of July 15, the parties were engaged in final trial preparation, discovery had closed, and trial was scheduled to begin in two weeks.

[14]             For example, Appellee James Hinton was assigned 6.5010% of the insurance proceeds.

[15]             Before trial, in September 2005, MCI and its affiliate companies who were creditors in Central Texas’ bankruptcy had filed a motion to reopen the bankruptcy case and a motion to enforce the Litigation Plan, complaining that no action had taken place to implement the Litigation Plan.  MCI contended that the Plaintiffs should be prohibited from obtaining a double recovery—one from the Litigation Plan and one from the state-court suit against MCI—and that, should the Plaintiffs obtain a judgment against MCI, it should receive a credit for any amounts received by the Plaintiffs under the Litigation Plan.

[16]             Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3242, 3271 (amended 1987, 1995, and 2003) ((current version at Tex. Civ. Prac. & Rem. Code Ann. § 33.013 (Vernon Supp. 2007)).

[17]             The only major dispute between the Bus Crash Claimants and Central Texas and its insurer was whether the claimants would have to fully release Central Texas, Cummings, and the insurer.

[18]             We acknowledge MCI’s note on the treatment that the trial court’s final judgment gives to the Litigation Fund payments to the Plaintiffs—as partial satisfactions of the judgment, rather than as settlement credits.  But Central Texas was not a party to the judgment and thus could not have partially satisfied it, and these payments came from the Litigation Plan and were funded by Central Texas and its liability insurer in consideration of Central Texas’ potential liability.

[19]             We view the Litigation Plan as a good-faith, albeit unsuccessful, attempt to avoid the possible detriment to the Plaintiffs if Central Texas’ proportionate responsibility were submitted to the jury.  Indeed, it had the stamp of approval of the bankruptcy court.