Opinion issued July 30, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-22-00563-CV ——————————— LESLIE GARZA, Appellant V. LELIA H. RODGERS, Appellee
On Appeal from the 157th District Court Harris County, Texas Trial Court Case No. 2020-01673
MEMORANDUM OPINION
This is a restricted appeal from a default judgment in favor of appellee Lelia
H. Rodgers. In a single issue, appellant, Leslie Garza, challenges the trial court’s
default judgment on the basis that the evidence does not support the trial court’s
award of damages. We affirm in part and reverse and remand in part. Background
On the morning of her sixty-third birthday, Rodgers was riding her bicycle in
preparation for an upcoming cycling event. Rodgers estimates that she was biking at
a pace of sixteen to eighteen miles per hour when an unrestrained dog began chasing
her and lunged into her rear tire, causing her to fall and suffer personal injuries and
damages. Rodgers filed suit against Garza and Russell Kade Till,1 who she alleged
were the dog’s owners or those who harbored, sheltered, kept, controlled, managed,
or possessed the dog as defined by the applicable city ordinance. Rodgers sued Garza
and Till for negligence and gross negligence and sought an unspecified amount of
damages for the following: medical expenses, disfigurement, loss of earnings and
earning capacity, physical pain and suffering, mental anguish, and physical
impairment.
Though Garza was personally served with process, she failed to answer or
otherwise appear in response to Rodgers’s lawsuit. Rodgers then filed a motion for
entry of default judgment in the amount of $500,000. In the motion, Rodgers
identified $9,154.81 in medical expenses. Rodgers’s exhibits to the motion included
the following: medical records and bills for Rodgers’s post-accident treatment;
records of the 911 call on the date of the accident; and Rodgers’s typed statement
detailing the accident, her injuries, expenses and damages, and current condition.
1 Till is not a party to this appeal. 2 The trial court conducted a hearing on the motion for entry of default
judgment on November 8, 2021. At the hearing, the court heard testimony from
Rodgers, who again described her accident, injuries, treatment, and recovery, as well
as the loss of earnings she suffered as a restaurant and bar owner. Rodgers stated
that her medical bills totaled $18,301.00 and that she lost between $25,000 and
$26,000 as a result of not paying herself a salary for three months while she
recovered. At the conclusion of the hearing, the trial court noted that it would “have
no problem with a final judgment in the amount of $500,000 based on the
testimony.”
On February 9, 2022, the trial court signed a judgment for Rodgers against
Garza (and Till) in the amount of $500,000. The judgment did not itemize Rodgers’s
damages or otherwise indicate how the court arrived at the $500,000 total.
Thereafter, Garza filed a restricted appeal on July 27, 2022.
Restricted Appeal
To prevail on a restricted appeal, an appellant must show that: (1) she filed
notice of the restricted appeal within six months after the signing of the default
judgment; (2) she was a party to the underlying lawsuit; (3) she did not participate
in the hearing that resulted in the default judgment, and did not timely file any post-
judgment motions or requests for finding of fact or conclusions of law; and (4) error
is apparent on the face of the record. TEX. R. APP. P. 26.1(c); Ins. Co. of Pa. v.
3 Lejeune, 297 S.W.3d 254, 255 (Tex. 2009) (per curiam). The first three elements are
necessary to confer jurisdiction; the fourth is not. Ex parte E.H., 602 S.W.3d 486,
497 (Tex. 2020). Here, the parties do not dispute satisfaction of the first three
elements. Thus, we have jurisdiction over Garza’s restricted appeal.
Sufficiency of the Evidence of Damages
On appeal, Garza argues that the trial court’s award of $500,000 is
unsupported by the evidence.2 Garza questions the evidence of Rodgers’s economic
damages, (totaling, according to Garza, $45,422.92), and argues that Rodgers
presented no evidence of the remaining $454,577.04 presumably awarded for
noneconomic damages.
A. Standard of Review
When a default judgment on a claim for unliquidated damages is entered, all
factual allegations in the petition are deemed admitted except for the amount of
damages. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992) (citing
Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731 (Tex. 1984)). Before
awarding unliquidated damages in a default judgment, a trial court must hear
evidence of those damages. TEX. R. CIV. P. 243; Heine, 835 S.W.2d at 83. A plaintiff
in a default judgment must prove a “causal nexus” between the event made the basis
2 Garza does not specify whether she challenges the legal or factual sufficiency of the evidence. 4 of the suit and her injuries. Morgan, 675 S.W.2d at 732. “Proving that the event sued
upon caused the plaintiff’s injuries is part and parcel of proving the amount of
damages to which the plaintiff is entitled.” Id.
If no findings of fact or conclusions of law are filed or requested in a bench
trial, we assume that the trial court made all findings necessary to support the
judgment, but when the appellate record includes a reporter’s record, these implied
findings may be challenged for legal or factual sufficiency. Heine, 835 S.W.2d at
83–84.
This Court may sustain a legal sufficiency, or no-evidence point, only if the
record reveals one of the following: (1) a complete absence of a vital fact, (2) the
court is barred by rules of law or evidence from giving weight to the only evidence
offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more
than a scintilla, or (4) the evidence conclusively proved the opposite of the vital fact.
City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005).
In deciding a legal sufficiency challenge, we consider only the evidence and
inferences which, when viewed in the light most favorable to the judgment, tend to
support the judgment; we disregard all evidence and inferences to the contrary.
Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981) (per curiam). In
determining a factual sufficiency challenge, we consider all of the evidence in order
to determine if the evidence supporting the finding is so weak or the evidence to the
5 contrary so overwhelming that the judgment should be set aside and a new trial
ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).
B. Analysis of Damages
Though not clearly delineated on appeal, Rodgers appears to challenge the
evidence supporting the following categories of damages: (1) medical expenses; (2)
lost wages; and (3) noneconomic damages such as past and future pain, mental
anguish, and physical impairment. We address each of these in turn.
1. Medical Expenses
In her motion for entry of default judgment, Rodgers outlined medical
expenses totaling $9,154.81. This figure reflects the amounts owed by Rodgers as
demonstrated by the bills received by Rodgers and attached to the motion. At the
hearing, Rodgers’s counsel advised the court that the “total medicals” were $18,301.
The charges reflected in those bills total $30,396.94.3 At the default judgment
hearing, the trial court stated the following with respect to Rodgers’s medicals:
And really, the medical bills are all proved up, so we don’t even need to go through those. We don’t need to go over the amounts. I’ve got it. I just need sort of the rest of the story so you can substantiate that line, whatever you want me to write in.
We disagree with the trial court’s assertion that the medical bills were “all proved
up.” To the contrary, a claim for medical expenses must be supported by evidence
3 These figures differ from those contested by Garza on appeal. 6 that the expenses were reasonably necessary for the plaintiff to incur as a result of
her injuries. Jackson v. Gutierrez, 77 S.W.3d 898, 902 (Tex. App.—Houston [14th
Dist.] 2002, no pet.) (citing Rodriguez-Narrea v. Ridinger, 19 S.W. 3d 531, 532
(Tex. App.—Fort Worth 2000, no pet.)). Proof of amounts charged or paid does not
establish reasonableness. Id. Further, evidence that medical expenses are reasonable
and customary is no evidence those medical expenses were reasonably necessary.
Id. (citing Rivas v. Garibay, 974 S.W.2d 93, 96 (Tex. App.—San Antonio 1988, pet.
denied)); see also Transp. Concepts, Inc. v. Reeves, 748 S.W.2d 302, 305 (Tex.
App.—Dallas 1988, no pet.) (holding evidence legally insufficient to support
damages award for medical expenses where plaintiff presented no evidence that
expenses were reasonably necessary); Warren v. Zamarron, No. 03-03-00620-CV,
2005 WL 1038822, at *4 (Tex. App.—Austin May 5, 2005, no pet.) (mem. op. on
reh’g) (citing Jackson and holding that proof of amounts plaintiff actually paid in
medical expenses through admission of medical records and bills did not establish
that expenses were necessary).
A plaintiff can demonstrate that her medical expenses are reasonable or
necessary in two ways: (1) by presenting expert testimony or (2) by submitting
affidavits in compliance with section 18.001 of the Texas Civil Practice and
Remedies Code. Jackson, 77 S.W.3d at 902 (citing TEX. CIV. PRAC. & REM. CODE
§ 18.001; Rodriguez-Narrea, 19 S.W.3d at 532). Here, however, Rodgers failed to
7 make either showing. Therefore, there was no evidence of the necessity or
reasonableness of her medical expenses. “The fact that the testimony was adduced
in a default judgment hearing does not relieve appellee of her burden to prove the
reasonableness and necessity of her medical expenses.” Jackson, 77 S.W.3d at 903.
Because Rodgers failed to present evidence that her medical expenses were
reasonable and necessary, we reverse the portion of the trial court’s judgment
awarding damages for medical expenses (if any).
2. Lost Wages
Garza also complains that though Rodgers testified to and requested $25,000
in lost wages, Rodgers “offered no proof of what [she] actually earned, nor tax
returns, nor bank records, nor any other financial evidence to support [her] request
for $25,000 in lost wages.”
We disagree with Garza that Rodgers needed documentary evidence in
addition to her testimony to support her claim for lost wages. At the default judgment
hearing, Rodgers testified that she owns a restaurant and bar in the Houston area and
that her business suffered when she had to step away from day-to-day operations as
a result of the accident. She testified that she did not pay herself a salary for three
months following the accident. Rodgers testified that she previously made $2,500
per week, or $10,000 per month, so her lost wages were “about $25,000 for three
months.” Texas courts have upheld default judgment awards for lost wages based on
8 similar testimony. See Jackson, 77 S.W.3d at 904 (affirming trial court’s judgment
as to lost wages where appellant “testified she missed 30 days of work ‘as a result’
of the accident” and “quantified the amount of wages she would have received
during those days she did not work”); Reeves, 748 S.W.2d at 305 (finding “some
evidence” to support award for lost wages where plaintiff testified as to amount of
time off work and amount of wages lost during that time).
Unfortunately for Rodgers, however, the trial court’s damages award does not
specify the amount awarded for lost wages. Rather, the court awarded $500,000
without further clarification of the breakdown of that amount, and the judgment
makes no mention of lost wages (or any other category of damages). For that reason,
we must remand this matter to the trial court for a new trial on the issue of damages.
See Jackson, 77 S.W.3d at 903–04 (reversing trial court’s award for both mental
anguish and pain and suffering where record did not provide any means of
distinguishing amount awarded for mental anguish from that awarded for pain and
suffering) (citing TEX. R. APP. P. 44.1(b) (reversal as to all matters in controversy
required if non-reversible and reversible cannot be fairly separated)); see also Heine,
835 S.W.2d at 86 (reversing and remanding as to all unliquidated damages upon
review of default proceeding even though not all of appellant’s no-evidence
challenges sustained); Sharm, Inc. v. Martinez, 900 S.W.2d 777, 784, 786 n.9 (Tex.
App.—Corpus Christi–Edinburg 1995, no writ).
9 3. Physical Pain, Mental Anguish, and Physical Impairment
As to the remaining portions of the award, Garza argues that Rodgers
presented no evidence of any noneconomic damages (though she does not specify
any particular category of damages for which she claims Rodgers has no evidence).
Rodgers responds that she presented sufficient evidence to support the following
types of damages: (1) physical pain, (2) mental anguish, and (3) physical
impairment. Again, the trial court’s judgment did not identify any specific amounts
awarded for any category of damages.
Physical Pain
Given the “inherent indeterminacy” of noneconomic damages such as pain
and suffering, we must afford discretion to a jury’s determinations of noneconomic
awards so long as they are supported by the evidence. See Gregory v. Chohan, 670
S.W.3d 546, 557 (Tex. 2023) (plurality op.); see also Rosenboom Mach. & Tool,
Inc. v. Machala, 995 S.W.2d 817, 829 (Tex. App.—Houston [1st Dist.] 1999, pet.
denied) (“Matters of pain and suffering are necessarily speculative, and it is within
the province of the jury to set the amount of such damages.”); Wal-Mart Stores, Inc.
v. Sholl, 990 S.W.2d 412, 420 (Tex. App.—Corpus Christi–Edinburg 1999, pet.
denied) (describing mental anguish, pain and suffering, and physical impairment and
disfigurement as “the more amorphous, discretionary damages” best “left to the
discretion of the trier of fact”) (internal quotations omitted).
10 At the default judgment hearing, Rodgers testified that upon impact, she lost
consciousness. She recalled waking up in the ambulance and feeling pain in her head
and left side of her body. Rodgers testified that her head hit the pavement, and her
helmet “cracked up the back.” She suffered a large hematoma on the back of her
head, though she did not crack her skull. Rodgers also testified that she suffered a
broken pelvis, which caused radiating pain in her hip girdle area. At the time of the
hearing, Rodgers stated that the area would still “kind of seize up” and cause her to
“hunch over” if she did not focus on exercises to improve flexibility. She also
described pain in her lower back and denied any prior back or pelvis problems pre-
accident. Rodgers was essentially bedridden for two months before beginning
physical therapy and water therapy in January 2020. She stated she was still in pain
after the first two months. Her formal therapy continued until March 2020, when the
COVID-19 pandemic began.
Even if we were to conclude that Rodgers’s testimony is some evidence to
support an award for pain and suffering, see Reeves, 748 S.W.2d at 305 (plaintiff’s
testimony as to pain suffered was “some evidence” to support trial court’s award of
$25,000 for pain and suffering), we cannot ascertain from the record or default
judgment the amount the trial court awarded for such damages. We therefore remand
for a new trial as to damages. See Jackson, 77 S.W.3d at 903–04.
11 Mental Anguish
To recover mental anguish damages, a party must present either “direct
evidence of the nature, duration, or severity of a plaintiff’s anguish, thus establishing
a ‘substantial disruption in the plaintiffs’ daily routine,’ or other evidence of a ‘high
degree of mental pain and distress’ that is ‘more than mere worry, anxiety, vexation,
embarrassment, or anger.” Id. at 903 (quoting Saenz v. Fidelity & Guar. Ins.
Underwriters, 925 S.W.2d 607, 614 (Tex. 1996)). Here, Rodgers did not present any
such testimony. Though she testified that the first two months of her recovery “kind
of made [her] crazy” and that she “was very anxious and very upset about it,” she
also testified that “[a]fter awhile, you just kind of lean into recovering” and “accept
the fact that you are in bed.” Rodgers’s testimony does not demonstrate the nature,
severity, duration, or degree of mental anguish she claims to have suffered. See id.;
see also Saenz, 925 S.W.2d at 614 (quoting Parkway Co. v. Woodruff, 901 S.W.2d
434, 444 (Tex. 1995)).4 To the extent the trial court awarded damages for mental
anguish,5 we reverse the award and remand for a new trial on damages. See Jackson,
77 S.W.3d at 903–04.
4 Contrast these cases with Carrell v. Richie, 697 S.W.2d 43, 44–45 (Tex. App.— Austin 1985, writ ref’d n.r.e.) (upholding award for mental pain and suffering where evidence described terror, fear, trepidation, humiliation, and embarrassment). 5 The trial court’s comments at the hearing suggest an intention to award damages for mental anguish:
12 Physical Impairment
Lastly, we address the issue of any damages awarded for physical impairment.
Physical impairment, also referred to as loss of enjoyment of life, “encompasses the
loss of the injured party’s former lifestyle.” Dawson v. Briggs, 107 S.W.3d 739, 752
(Tex. App.—Fort Worth 2003, no pet.) (citing Schindler Elevator Corp. v. Anderson,
78 S.W.3d 392, 412 (Tex. App.—Houston [14th Dist.] 2001, pet. abated)). It is an
element of damages beyond loss of earning capacity and beyond any pain and
suffering, to the extent that it produces a separate loss that is “substantial or
extremely disabling.” Id. (citing Dollison v. Hayes, 79 S.W.3d 246, 253 (Tex.
App.—Texarkana 2002, no pet.); Blankenship v. Mirick, 984 S.W.2d 771, 777 (Tex.
App.—Waco 1999, pet. denied)).
At the default judgment hearing, Rodgers described how, as a result of the
injuries sustained in the accident, she was confined to her bed except for trips to the
bathroom with a walker. She testified that because she could not stand in the shower,
she resorted to sponge baths. Rodgers explained that she needed to remain flat on
Okay. I think there is sufficient evidence to support a judgment on all of the elements of damages.
....
. . . She has already discussed future pain. She has already discussed future impairment. She has already discussed past pain, past mental anguish, past physical impairment. I don’t know an element you have missed.
13 her back during that initial two-month period because if she moved her pelvis and it
dislocated, she would need surgery. During that time, Rodgers could not be present
or active in the day-to-day management of her restaurant, as she had been previously.
Further, in her written statement attached to her motion, Rodgers described how she
has been unable to return to riding her bicycle on the street, a hobby that she enjoyed
for twenty-five years prior to the accident.
Even if we determined, based on this testimony and evidence, that the
evidence supports some award of damages for physical impairment, see Machala,
995 S.W.2d at 824–25 (upholding jury award for physical impairment where
evidence indicated that as a result of fall plaintiff suffered fractured vertebrae, was
hospitalized for two weeks, and was unable to perform most of daily activities she
engaged in prior to fall and citing numerous cases reaching similar determination),
we again must remand for a new trial on damages because the trial court’s judgment
fails to specify the amount of damages awarded for physical impairment (if any).
See Thomas v. Martinez, 217 S.W.3d 680, 684–85 (Tex. App.—Dallas 2007, pet.
stricken) (reversing damages awarded for physical impairment and pain and
suffering and remanding for new trial on those aspects alone where record did not
provide any means of distinguishing amounts awarded for each category).
14 Venue
Garza also argues in her reply brief6 that venue was improper in Harris
County, Texas and that the proper venue was Chambers County, Texas. Assuming
Garza’s venue argument is properly before us, we first note that a defendant’s
objections to a plaintiff’s choice of venue can be waived; similarly, “a defendant is
free to consent or acquiesce to venue in a particular county.” Champion v. Estlow,
456 S.W.3d 363, 365 (Tex. App.—Austin 2015, pet. denied) (citing TEX. R. CIV. P.
86(1)). In addition, Garza’s restricted appeal does not challenge the trial court’s
default judgment against her on the basis of lack of notice, lack of personal
jurisdiction, or some other defect in service. See id. at 365–66 (determining that
appellant could not demonstrate venue error on face of record where appellant’s
argument required court to take judicial notice that location of action and defendant’s
address were in different county than that of suit; court noted that venue challenges
may be waived and appellant did not challenge default judgment on basis of lack of
notice, lack of personal jurisdiction, or other defect in service).
6 We note that Garza raised the issue of venue in her reply brief, and the new argument does not appear to have been made in response to anything asserted in Rodgers’s brief. See TEX. R. APP. P. 38.3 (“The appellant may file a reply brief addressing any matter in the appellee’s brief.”) (emphasis added). Accordingly, Garza has waived any challenge to improper venue. See Fallon v. MD Anderson Phys. Network, 586 S.W.3d 58, 73 (Tex. App.—Houston [1st Dist.] 2019, pet. denied) (holding appellant waived hearsay challenge to affidavit by raising it for first time in reply brief); McAlester Fuel Co. v. Smith Int’l, Inc., 257 S.W.3d 732, 737 (Tex. App.— Houston [1st Dist.] 2007, pet. denied) (“An issue raised for the first time in a reply brief is ordinarily waived and need not be considered by this Court.”). 15 We further conclude that there is no venue error apparent from the face of the
record, as required to prevail in a restricted appeal. See Lejeune, 297 S.W.3d at 255.
Garza contends that the following establishes improper venue: (1) the original
petition’s assertions that the cause of action accrued in Chambers County and the
dog attack occurred on the defendants’ property in Chambers County, and (2) the
fact that the trial court’s order authorizing substituted service on Till required that
he be served in Chambers County.
Garza’s arguments ignore the fact that the petition also asserted that Garza
was a resident of Harris County—a fact she does not dispute.7 Therefore, under Civil
Practice and Remedies Code sections 15.002(a)(2) and 15.005, because venue was
proper as to Garza in Harris County, venue was proper in Harris County as to all
defendants, at least on the face of the record. See TEX. CIV. PRAC. & REM. CODE
§ 15.002(a)(2) (stating that one venue option is “the county of defendant’s residence
at the time the cause of action accrued if defendant is a natural person”); § 15.005
(“In a suit in which the plaintiff has established proper venue against a defendant,
the court also has venue of all the defendants in all claims or actions arising out of
the same transaction, occurrence, or series of transactions or occurrences.”). We
conclude there is no venue error apparent from the face of the record, nor any basis
7 The record reflects that Garza was personally served in Harris County. 16 for allowing Garza to raise such a challenge at this stage. See Champion, 456 S.W.3d
at 366.
Conclusion
We reverse the trial court’s damages award because it fails to specify the type
of damages it awarded, or the amounts (if any) awarded for any category of damages,
i.e., medical expenses, mental anguish, pain and suffering, physical impairment, or
lost wages, and we remand these damages issues for a new trial consistent with this
opinion.8
Amparo Monique Guerra Justice
Panel consists of Chief Justice Adams and Justices Guerra and Farris.
8 After sustaining at least two of Garza’s points challenging the sufficiency of the evidence to support certain categories of damages, we would typically reverse and render judgment for Garza as to those claims. However, when an appellate court sustains a no-evidence point after an uncontested hearing on unliquidated damages following a no-answer default judgment—as is the case here—the appropriate disposition is to remand for a new trial on the issue of unliquidated damages. Sharm, Inc. v. Martinez, 900 S.W.2d 777, 786 n.9 (Tex. App.—Corpus Christi–Edinburg 1995, no writ) (citing Holt Atherton Indus. v. Heine, 835 S.W.2d 86 (Tex. 1992)). 17