Jackson v. Gutierrez

77 S.W.3d 898, 2002 Tex. App. LEXIS 3156, 2002 WL 835048
CourtCourt of Appeals of Texas
DecidedMay 2, 2002
Docket14-01-00761-CV
StatusPublished
Cited by71 cases

This text of 77 S.W.3d 898 (Jackson v. Gutierrez) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jackson v. Gutierrez, 77 S.W.3d 898, 2002 Tex. App. LEXIS 3156, 2002 WL 835048 (Tex. Ct. App. 2002).

Opinion

OPINION

EVA M. GUZMAN, Justice.

This is a restricted appeal from a no-answer default judgment in a personal injury suit arising out of a car accident. In a single issue, appellant contends error appears on the face of the record. Appel-lee cross-appeals, arguing appellant’s issue is frivolous and seeking attorney’s fees. We sustain appellant’s issue, reverse the judgment below in part, and remand for a new trial as to all damages except lost wages. We overrule appellee’s cross-point.

Background

Appellee and appellant were involved in a car accident on November 30, 2000, Appellee filed suit on February 14, 2001, and served appellant exactly one month later. On the morning of May 2, 2002, appellee obtained a default judgment. Unaware of the judgment, appellant filed an answer that same afternoon. 1 During the next three months, appellant sent discovery to appellee and filed a jury demand. Appellee did not advise appellant of the default until three months after the date of judgment. Thus, appellant was unable to timely file a motion for a new trial.

Issue

Appellant’s failure to answer represents an admission of all facts properly set forth in the plaintiffs petition. Morgan v. Compugraphic Corp., 675 S.W.2d 729, 732 (Tex.1984). Both parties agree appellant’s failure to answer renders him unable to attack the liability finding below. However, appellant seeks and is entitled to a new trial on the issue of damages if he can show: (1) his appeal is brought within six months of the signing of the trial judgment; (2) he was a party to the suit; (3) he did not participate in the actual trial; and (4) the error complained of appears on . the face of the record. Norman Communications v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex.1997). Both parties agree the first three elements are met.

Appellant first contends the fourth element is met because the record contains no evidence of a causal nexus between the event sued upon and appellee’s injuries. Second, appellant argues the evidence of appellee’s medical expenses, mental anguish, pain and suffering, and deductible expense for automobile damage is legally insufficient. See Arenivar v. Providian Nat’l Bank, 23 S.W.3d 496, 498 (Tex.App.-Amarillo 2000, no pet.) (sufficiency of evidence as to amount of unliquidated damages awarded in no-answer default judgment may be challenged by restricted appeal). 2 Third, appellant argues the evidence of lost wages is factually insufficient. We review each contested element of appellee’s alleged damages separately.

*902 Discussion

I.Standards and Scope of Review

In reviewing a legal insufficiency claim, we consider only the evidence and inferences which tend to support the judgment and disregard all evidence and inferences to the contrary. Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex.1998). If there is more than a scintilla of evidence to support the findings, the no-evidence challenge cannot be sustained. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994). Evidence is thus legally sufficient when it rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 922 (Tex.1998). In reviewing appellant’s factual sufficiency challenges, we examine all the evidence. Castanon v. Monsevais, 703 S.W.2d 295, 297 (Tex.App.-San Antonio 1985, no writ). We reverse only if the finding is against the great weight and preponderance of the evidence. Id. In a restricted appeal, the scope of review is limited to the “face of the record,” which consists of all the papers on file in the appeal, including the statement of facts. Norman Communications, 955 S.W.2d at 270.

II.Causal Nexus

Even if a defendant’s liability has been established, proof of a causal nexus between the event sued upon and the damages claimed is required. Morgan, 675 S.W.2d at 731-32. The legal and factual sufficiency of the evidence to show this causal nexus is analyzed using the same test applicable to any challenge to the legal and factual sufficiency of the evidence. See Holt Atherton Indus, v. Heine, 835 S.W.2d at 80, 84 (Tex.1992). Appellant contends, without citing any authority, there can be no proof of causal nexus without evidence of appellee’s good health prior to the accident. We disagree. On direct examination at the default judgment hearing, appellee testified she went to the hospital, met with two doctors, received medication, paid her car insurance deductible, lost wages, and had pain and mental anguish, all “as a result of the accident.” We hold this testimony satisfies the causal nexus requirement under Morgan.

III.Proof of Damages

A. Medical Expenses

Documentary evidence admitted in the default proceeding includes bills for approximately $4,250 in medical expenses. Appellant correctly notes that a claim for medical expenses must be supported by evidence that such expenses were reasonably necessary for the plaintiff to incur as a result of her injuries. See Rodriguez-Narrea v. Ridinger, 19 S.W.3d 531, 532 (Tex.App.-Fort Worth 2000, no pet.) (citing Six Flags Over Tex., Inc. v. Parker, 759 S.W.2d 758, 760 (Tex.App.-Fort Worth 1988, no writ)). Proof of amounts charged or paid is not proof of reasonableness. Id. In addition, evidence that medical expenses are reasonable and customary is no evidence those medical expenses were reasonably necessary. Rivas v. Garibay, 974 S.W.2d 93, 96 (Tex. App.-San Antonio 1998, pet. denied).

A plaintiff may prove medical expenses are reasonable and necessary either by presenting expert testimony, or by submitting affidavits in compliance with section 18.001 of the Texas Civil Practice and Remedies Code. See Tex. Civ. PRAC. & Rem. Code Ann. § 18.001 (Vernon 1997); Rodriguez-N arrea, 19 S.W.3d at 532. The parties agree appellee did neither of these. In rebuttal, appellee argues, without authority other than a general reference to section 18.001 itself, that the legislature *903 did not intend that section to apply to default proceedings.

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Bluebook (online)
77 S.W.3d 898, 2002 Tex. App. LEXIS 3156, 2002 WL 835048, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-gutierrez-texapp-2002.