Kenric Orlando McGowen v. Charles Edward Lewis

Opinion

Opinion issued April 29, 2010

In The

Court of Appeals

For The

First District of Texas

NO. 01-07-01095-CV

KENRIC ORLANDO MCGOWEN, Appellant

V.

CHARLES EDWARD LEWIS, Appellee

On Appeal from County Civil Court at Law No. 2

Harris County, Texas

Trial Court Cause No. 831292

MEMORANDUM OPINION

          Kenric Orlando McGowen appeals a judgment in favor of Charles Edward Lewis for injuries related to a motor-vehicle collision.  In two issues, McGowen argues that: (1) the trial court erred by finding a conflict in the jury’s initial verdict and instructing the jury to continue deliberating and award pain-and-suffering damages; (2) the evidence was legally and factually insufficient to support the jury’s pain-and-suffering award; and (3) the trial court erred by awarding attorney’s fees to Lewis.

          We affirm.

Background

          Charles Edward Lewis sued Kenric Orlando McGowen for injuries related to a motor-vehicle collision.  In 2005, McGowen responded to Lewis’s requests for admissions and denied many of them, including a request that he admit his negligence proximately caused the collision and Lewis’s injuries.  More than two years later, before the beginning of trial, McGowen stipulated to negligence in causing the collision.  McGowen’s attorney stated on the record, “Defendant will stipulate to liability in this case.  Defendant was negligent in causing the accident.  That does not mean that the Defendant stipulates to the damages.”

          Lewis was the sole witness during the trial.  He testified that he took himself to the emergency room after the collision.  Lewis testified that when he went to the emergency room he had pain in his neck, lower right side of his back, and right arm.  However, the records from the emergency room showed that Lewis reported only mild neck pain.  The emergency-room doctors took x-rays of Lewis’s hip, neck, and pelvis, and all of the x-rays showed normal findings.  The emergency-room doctors diagnosed Lewis with neck strain, gave him pain medication, and instructed him to follow up with his doctor in a few days if he was still in pain. 

Approximately three weeks later, Lewis saw a chiropractor for pain, stiffness, and decreased range-of-motion in his right hip or right lower back, upper neck, and right arm.  The chiropractor diagnosed Lewis with cervical sprain/strain, degeneration of the cervical intervertebral disc, lumbar sprain/strain, degeneration of the lumber intervertebral disc, and myospasm.  Lewis entered a two-and-a-half-month course of physical therapy and treatment with the chiropractor to alleviate his pain, which cost a total of $4,164.

          Lewis testified that he had been involved in a prior car accident in 2002, unrelated to the collision with McGowen.  In that accident Lewis also suffered a back injury, but he testified that the injury was to the opposite side of his back.  An MRI taken at that time showed an injury on the left side of his back, and Lewis had surgery, which he said completely alleviated his pain from the 2002 accident.  Lewis testified that he did not miss any work as a result of his 2002 accident, saying that he was determined to provide for his family and be a good role model for his son. 

The jury initially awarded Lewis damages, including all of his claimed expenses for chiropractic treatment, but no money for pain and suffering.  Lewis objected, arguing that there was a conflict in the verdict.  The trial court instructed the jury to award some money for pain and suffering and instructed the jury to continue deliberating.  The appellate record does not show whether McGowen objected to the trial court’s instruction.  The jury awarded $1,000 for pain and suffering, and the trial court rendered judgment on the verdict.

          After trial, Lewis moved for attorney’s fees under Texas Rule of Civil Procedure 215.4(b).  Lewis sought reimbursement for legal fees expended to prepare to prove liability at trial because McGowen initially denied liability in response to requests for admission but later stipulated to liability at trial.  The trial court granted Lewis’s motion, awarding $1,500 in attorney’s fees.

McGowen subsequently filed a motion to modify the judgment challenging the trial court’s instruction to the jury to award pain-and-suffering damages.  The trial court denied the motion.  As to the alleged conflict in the verdict, the trial court observed that the jury awarded more than just the cost for Lewis to be initially evaluated in the emergency room. 

McGowen timely filed his notice of appeal.  While on appeal, the parties raised concerns about the reporter’s record because it does not include any record of the trial court’s instructions to the jury to award monetary damages for pain and suffering.  This Court abated the appeal, and the trial court filed the following findings of fact and conclusions of law:

1.     The Court finds the above referenced cause of action was tried to a jury on August 8, 2007.

2.     The Court finds that the jury returned a verdict in favor of plaintiff in the amount of $5,502.75 for past medical expenses and $0 for past pain and suffering.

3.     The Court finds that Plaintiff timely objected to the verdict, citing a conflict in the verdict because there was an award for all of plaintiff’s past medical expenses but no award for past pain and suffering.

4.     The Court finds that, as a result of the jury returning a verdict in favor of plaintiff in the amount of $5,502.75 for all of plaintiff’s past medical expenses and returning a verdict of $0 for past pain and suffering, there was a conflict in the verdict.

5.     The Court finds that, after instructing the jury that they must re-deliberate and award some money for past pain and suffering, the jury returned a second verdict awarding $1,000.00 for past pain and suffering.

Conflict in the Verdict

          In his first issue, McGowen argues that the “trial court erred in instructing the jury that it was required to award [Lewis] something for pain and suffering.”  However, McGowen did not brief this issue as one relating to jury instructions.  Rather, in his brief he argues about the legal and factual sufficiency of the evidence. 

Instructing the Jury to Continue Deliberations

          Rule of Civil Procedure 295 provides:

If the purported verdict is defective, the court may direct it to be reformed.  If it is incomplete, or not responsive to the questions contained in the court’s charge, or the answers to the questions are in conflict, the court shall in writing instruct the jury in open court of the nature of the incompleteness, unresponsiveness, or conflict, provide the jury such additional instructions as may be proper, and retire the jury for further deliberations.

Tex. R. Civ. P. 295.  This rule “allows a trial court to clarify a verdict by instructing the jury of the nature of the ambiguity or conflict and retiring the jury for further deliberations.”  Adams v. Allstate County Mut. Ins. Co., 199 S.W.3d 509, 512 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). 

Preservation of Error

Appellate challenges to instructions given under Rule 295 must be preserved as any other jury charge error.  As a prerequisite to presenting an issue on appeal, the record must show that the trial court ruled on the appellant’s timely request, objection, or motion, which was sufficiently specific to apprise the trial court of the appellant’s complaint.  Tex. R. App. P. 33.1(a).  Similarly, the Rules of Civil Procedure expressly require preservation: “A party objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection.  Any complaint about a question, definition, or instruction on account of any defect, omission or fault in pleading, is waived unless specifically included in the objections.”  Tex. R. Civ. P. 274.

McGowen provided no reporter’s record pertinent to the trial court’s instruction that the jury continue deliberating and award some money for pain and suffering.  The trial court’s findings of facts and conclusions of law do not mention that McGowen objected to the trial court’s Rule 295 instruction to the jury.  McGowen’s motion to modify the judgment stated, “After Plaintiff objected to the verdict on the grounds that there was evidence of pain and suffering, the judge instructed the jury, over Defendant’s objection, that it must award some money to Plaintiff for pain and suffering.”  Even this is silent as to what McGowen’s objection, if any, may have been.  We do not know whether McGowen objected to the instruction that the jury “re-deliberate,” the instruction that the jury “award some money for past pain and suffering,” or both.  We hold that McGowen did not preserve this issue for our review, and we overrule McGowen’s first issue.

Attorney’s Fees

          In his second issue McGowen argues that Lewis was not entitled to attorney’s fees.  After trial, Lewis moved to recover attorney’s fees and expenses from McGowen under Rule of Civil Procedure 215, arguing that McGowen’s pretrial denials of requests for admission caused him additional expense in preparing to try undisputed issues.  On April 5, 2005, McGowen denied certain requests for admission relating to liability issues.  In June 2005, McGowen amended his responses to admit some of the facts relating to the collision; however, he did not entirely admit liability.  The parties agree that McGowen stipulated to liability for the collision before trial.

We review a trial court’s decision to award discovery sanctions under an abuse-of-discretion standard.  Bodnow Corp. v. City of Hondo, 721 S.W.2d 839, 840 (Tex. 1986); GT & MC, Inc. v. Tex. City Ref., Inc., 822 S.W.2d 252, 260 (Tex. App.—Houston [1st Dist.] 1991, writ denied).  The Texas Supreme Court has held that a party seeking sanctions for pretrial discovery abuse must obtain a ruling before the start of trial.  Meyer v. Cathey, 167 S.W.3d 327, 333 (Tex. 2005); Remington Arms Co. v. Caldwell, 850 S.W.2d 167, 170 (Tex. 1993) (“[T]he failure to obtain a pretrial ruling on discovery disputes that exist before commencement of trial constitutes a waiver of any claim for sanctions based on that conduct.”).

The discovery conduct upon which Lewis based his sanctions motion occurred two years before trial.  McGowen stipulated to liability for the collision before trial.  Lewis first moved for sanctions only after trial.  This is not a circumstance in which pretrial discovery abuse was not revealed until after the trial had begun, or even after trial.  See Meyer, 167 S.W.3d at 333; Remington Arms, 850 S.W.2d at 170.  Under Meyer and Remington Arms, Lewis waived his right to seek sanctions based on pretrial discovery.  We hold that the trial court abused its discretion by granting Lewis’s motion for sanctions and sustain McGowen’s second issue.

Conclusion

          We modify the judgment of the trial court to remove the award of attorney’s fees as sanctions, and we affirm the judgment as modified.

                                                          Michael Massengale

                                                          Justice

Panel consists of Chief Justice Radack and Justices Bland and Massengale.