Haryanto v. Saeed

860 S.W.2d 913, 1993 Tex. App. LEXIS 2221, 1993 WL 291444

• Court: Court of Appeals of Texas
• Decided: August 5, 1993
• Docket: C14-92-00846-CV
• Status: Published

Opinions

CANNON, Justice,

concurring.

I agree with the majority that the argument of appellee’s counsel was properly within the evidence of this case, however, I would affirm the trial court’s judgment only if ap-pellee files a remittitur of certain actual damages.

Broad form submission is now mandated by our Supreme Court “in any or every instance in which it is capable of being accomplished.” See Texas Dept. Of Human Services v. E.B., 802 S.W.2d 647, 649 (Tex.1990) (opinion of motion for rehearing) (citing Tex.R.Civ.P. 277). However, I do not believe the Supreme Court, by mandating broad form submission, intended to preclude appellate review of jury awards or to bar remitti-turs where the jury has plainly abused its discretion. See Greater Houston Transp. v. Zrubeck, 850 S.W.2d 579, 588 (Tex.App.— Corpus Christi 1993, writ pending). As the dissent notes, a generous reading of appel-lee’s proof shows actual, nondiscretionary damages, both past and future, of $42,647.00. That means, the remaining discretionary damages, both past and future, amounted to a staggering $957,303.00. Giving deference to the jury’s discretion, appellee’s uncontro-verted testimony about the bizarre facts surrounding the incident and the resulting anxiety and loss of his job, along with Dr. Thom-asson’s testimony that appellee suffered from post-traumatic stress disorder, support the jury’s award of $500,000.00 for past damages.

However, I cannot give the same deference to the jury’s award of $500,000.00 for future damages. Appellee’s testimony that he suffers from an ulcer, continues to have sleeping problems, and is addicted to over-the-counter sleeping pills more than two years after the incident is not supported by any independent medical evidence. Dr. Thomasson, who had not seen appellee in almost two years, testified hypothetically that if appellee were still suffering symptoms of anxiety, he would require a certain amount of group and individual psychotherapy. I would hold that the jury’s award for future damages which was based solely on the testimony of appellee and a doctor who had not seen him two years is so against the great weight and preponderance of the evidence as to be manifestly unjust. See Pope v. Moore, 711 S.W.2d 622, 624 (Tex.1986). Therefore, I would reverse the judgment and remand to the trial court unless appellee filed a remittitur of future damages in the amount of $400,000.00 within thirty days of the date of this opinion. If appellee accepted the remittitur, remand would not be necessary and I would affirm the trial court’s judgment. See Tex.R.App.P. 85(c); see also Larson v. Cactus Utility Co., 730 S.W.2d 640, 641 (Tex.1987).