Molina v. Moore

33 S.W.3d 323, 2000 Tex. App. LEXIS 6600, 2000 WL 1451195
CourtCourt of Appeals of Texas
DecidedSeptember 29, 2000
Docket07-98-0364-CV
StatusPublished
Cited by29 cases

This text of 33 S.W.3d 323 (Molina v. Moore) 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
Molina v. Moore, 33 S.W.3d 323, 2000 Tex. App. LEXIS 6600, 2000 WL 1451195 (Tex. Ct. App. 2000).

Opinion

JOHNSON, Justice.

Appellant Summer Musick Molina appeals from the trial court’s judgment awarding her less damages than the amount of damages found by the jury. We reverse and render judgment for the amount of damages found by the jury.

I. BACKGROUND

Appellant sued appellee Randall D. Moore for personal injuries which she suffered in a traffic accident on November 30, 1994, when she was sixteen years of age. Following the accident, appellant complained of soreness and pain, missed a period of work and received chiropractic care. Of the $3,900 in medical expenses which she claimed as a result of the accident, most 1 were incurred between December 2, 1994, and March 27, 1995, while she was a minor and had not had her disabilities of minority removed. On September 16, 1995, appellant married. Suit was filed after her marriage, and in her own name.

The case was tried to a jury. The trial court submitted the question of appellant’s damages in the past for physical pain and mental anguish, physical impairment, and reasonable expenses of medical care by a broad form question calling for only one answer. The jury wrote the figure of $4,150 in the answer blank, but also made notations on the jury charge form indicating that the damages figure was comprised of $250 for physical pain and mental anguish, $0 for physical impairment, and $3,900 for medical care. 2

Appellee moved for Judgment Notwithstanding the Verdict, contending that the jury notations showed the damages finding included $3,900 for past medical expenses. Appellee’s motion urged that such amount of $3,900 should be deducted from the damages finding because appellant was a minor when the expenses were incurred, the cause of action for recovery of such expenses did not belong to her, and the evidence at trial did not establish that she was responsible for payment of the expenses. The trial court granted appellee’s motion and on August 10, 1998, signed a final judgment awarding appellant $250 together with all costs of court. After entry of judgment, appellee’s insurance company issued checks payable jointly to appellant and her attorney in the amounts of $250 and $404. The checks were dated August 31, 1998, and October 2,1998, respectively. Appellee has attached copies of the checks to his appellate brief and to a Motion to Dismiss the Appeal for Mootness. Appel- *326 lee represents by affidavit 3 that the checks were in payment of the judgment amount and court costs awarded by the judgment and that the checks were cashed. Appellant does not dispute such assertions.

Appellant urges by two issues that the trial court erred in granting appellee’s motion for judgment notwithstanding the jury verdict, and prays that we reverse and render judgment for the entire amount of damages found by the jury. Appellee has moved for dismissal of the appeal because appellant accepted the benefits of the judgment entered by the trial court. Subject to its motion to dismiss the appeal for mootness, appellee urges that we sustain the trial court’s action in reducing the jury’s damages answer by the $8,900, which the jury’s notations reflect was for past medical expenses. In the alternative, appellee asserts by cross-point that the evidence was legally and factually insufficient to support the jury’s finding of $4,150 in damages.

II. PAYMENT OF THE JUDGMENT

We initially address appellee’s Motion to Dismiss for Mootness which asserts that appellant’s voluntary acceptance of benefits of the judgment entered by the trial court bars her from prosecuting an appeal from the judgment. In support of his position, appellee cites City of Mesquite v. Rawlins, 399 S.W.2d 162 (Tex.Civ. App.—Tyler 1966, writ ref. n.r.e.). Appel-lee also recognizes the exception to the “acceptance of benefits” rule, however, which allows a party to voluntarily accept benefits of a judgment and appeal if reversal of the judgment cannot possibly affect the appealing party’s right to the benefits accepted. See Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002, 1004 (1950). Because appellant does not seek a remand for a new trial, but only seeks reversal and rendition of judgment in her favor, appellee seems to recognize that she might come within the exception to the rule. Thus, apparently seeking to counter appellant’s failure to seek a remand and new trial, appellee urges that because, as part of his cross-issue he seeks a remand and new trial, appellant could possibly receive a judgment for a lesser amount on retrial, and appellant does not fall within the exception discussed in Carle. We disagree with appellee’s assertions.

A. Law

A litigant cannot voluntarily accept the benefits of a judgment and afterward prosecute an appeal from that judgment. Carle, 149 Tex. at 472, 234 S.W.2d at 1004; Rawlins, 399 S.W.2d at 165-66. The “acceptance of benefits” doctrine does not apply, however, if the benefit accepted by the party against whom the doctrine is asserted could not possibly be adversely affected by the matters urged on appeal by the party accepting the benefit. Kahn v. Seely, 980 S.W.2d 794, 798 (Tex.App.—San Antonio 1998, pet. denied). And, if an appealing party chooses to seek only reversal and rendition of judgment, then the appellate court will not reverse and remand the case. See Stevens v. National Educ. Centers, Inc., 11 S.W.3d 185, 186 (Tex.2000).

B. Analysis

Appellant accepted payment of both damages and court costs awarded to her by the trial court’s judgment of August 10, 1998. If she were seeking reversal of the judgment and remand for a new trial to obtain greater damages than she was awarded under the judgment, she would then be in the same posture as was the City of Mesquite in Rawlins, which appel-lee has cited to us. But she does not seek remand, and thus is not in the same posture as the City of Mesquite.

In Rawlins, the City accepted payment of the amount of taxes awarded to it by judgment, then sought on appeal to reverse that same judgment and obtain a new trial to seek a greater award of taxes *327 against Rawlins. The City of Mesquite did not seek a rendition of judgment as appellant does in the matter now before us. The City of Mesquite obtained judgment for the amount awarded by the jury. The court of appeals noted in Rawlins that if it sustained the City’s request for a new trial, the City might not receive as great an amount on retrial as it was awarded under the judgment from which it was appealing. Rawlins, 399 S.W.2d at 166. Accordingly, the City’s appeal was dismissed under the acceptance of benefits doctrine.

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Bluebook (online)
33 S.W.3d 323, 2000 Tex. App. LEXIS 6600, 2000 WL 1451195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/molina-v-moore-texapp-2000.