Popkowsi v. Gramza

671 S.W.2d 915, 1984 Tex. App. LEXIS 5234
CourtCourt of Appeals of Texas
DecidedMarch 15, 1984
Docket01-83-0552-CV
StatusPublished
Cited by33 cases

This text of 671 S.W.2d 915 (Popkowsi v. Gramza) 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
Popkowsi v. Gramza, 671 S.W.2d 915, 1984 Tex. App. LEXIS 5234 (Tex. Ct. App. 1984).

Opinion

OPINION

DOYLE, Justice.

This is an appeal by writ of error from a default judgment granting the appellee damages for personal injuries in the amount of $50,000, plus pre-judgment interest at nine percent per year.

In June, 1980, the appellee was allegedly injured while riding in the back of the appellant’s truck. The appellee testified that he was tossed from the back of the truck when the appellant lost control of the truck, causing it to veer off the road. The appellee’s first amended original petition was filed in November 1980. Citation was issued and delivered to the appellant on November 8, 1980. The appellant filed no answer, and on December 9, an interlocutory default judgment was entered. On December 27, the trial court signed the final default judgment which is the subject of this proceeding.

In the first two of the appellant’s five points of error, he contends that the trial court erred in rendering a default judgment because, as a matter of law, the service of citation was improper. The appellant also complains that there was insufficient evidence to support the fact of service on him.

Generally, in a direct attack by writ of error on a default judgment, there are no presumptions as to the validity of service. Whitney v. L. & L. Realty Corporation, 500 S.W.2d 94 (Tex.1973). Furthermore, the record must affirmatively show a strict compliance with the procedural rules relating to the issuance, service, and return of citation.

The appellant argues that the record does not affirmatively show strict compliance with the proper mode of service of process required in a default judgment, because there is a mistake in the spelling of the appellant’s name on the sheriff’s return. According to the appellant, the sheriff’s return reflects service on Michael Poprowski, instead of the appellant’s true name Michael Popkowsi. Because the return is important as proof of service, the appellant argues that the defect in the spelling of his name on the return resulted in an invalid service of process, and re *918 quires a reversal of the default judgment. As authority for this contention, the appellant cites several cases which hold that a mistake in the defendant’s name on the citation requires the reversal of a default judgment. Specifically, the appellant contends that the sheriffs return in the sheriff’s handwriting shows an “r” where it should show a “k”. The appellee argues that the letter is a “k”. No complaint is made as to any other irregularity on the return. The appellant’s contentions are rejected for two reasons. First, not one of the many cases cited by the appellant involved a determination of whether a letter in the name of a party served was in fact another letter. Each of these cases involved misspelled names or wrong initials. Therefore, every case cited by the appellant is distinguishable. Second, because there were no findings of fact or conclusions of law, we must presume that the trial judge impliedly found the now disputed letter “r” in the appellant’s name as shown on the sheriff’s return was indeed a “k” as it should have been. First Title Co. of Corpus Christi v. Cook, 625 S.W.2d 814 (Tex.Civ.App.—Fort Worth 1981, Dism’d). The appellant’s first two points of error are overruled.

In the appellant’s third point of error, he contends that the trial court erred in rendering judgment for the appellee since there was no evidence or insufficient evidence to support the award of $50,000 damages.

Specifically, the appellant challenges the evidence substantiating the ap-pellee’s claims (1) that he suffered pain in the neck, arm, and shoulder; (2) that he suffered anxiety and stress; (3) that he suffered lost “net profit” in the amount of $7,000; (4) that he suffered diminished earning capacity; and (5) that he incurred medical bills. As there were no findings of fact or conclusions of law in this case, the appellate court presumes that the trial judge found all the facts necessary to sustain the judgment. Jones v. Ben Maines Air Conditioning Co., 621 S.W.2d 437 (Tex.App.—Texarkana 1981, no writ). Furthermore, the appellate court will affirm the judgment if it can be sustained on any reasonable theory supported by the evidence and authorized by law. Lassiter v. Bliss, 559 S.W.2d 353 (Tex.1977).

The judgment of the trial court merely recites that the cause of action is unliquidated, and that from the evidence heard by the court, it appeared that the appellee was damaged by the appellant in the sum of $50,000. The court did not itemize the damages, and hence it is impossible to determine what portion of the damages was ascribed to each element. Nevertheless, we must examine the record for evidence offered to prove the appellee’s claimed damages. Gerland’s Food Fair, Inc. v. Hare, 611 S.W.2d 113, 116 (Tex.Civ.App.—Houston [1st Disk] 1981, no writ); Rule 243, T.R.C.P.

Generally, competent evidence of loss of profits may be of probative value in showing diminished earning capacity. Greyhound Bus Lines Inc. v. Duhon, 434 S.W.2d 406, 415 (Tex.Civ.App.—Houston [1st Dist.] 1968, no writ). The complaining party must provide “data from which [the lost profits] may be ascertained with a reasonable degree of exactness.” Texas Power & Light v. Barnhill, 639 S.W.2d 331, 336 (Tex.App.—Texarkana 1982, writ ref’d n.r.e.).

The appellee claimed that he had lost approximately $7,000 in net profit due to his injuries arising from the alleged accident, because he could not accept contracting jobs on three homes. This testimony does not meet the “reasonable degree of exactness standard” of loss profits required by the law.

As further proof of diminished income, the appellee only offered evidence of payments to additional personnel, hired, to perform labor that the appellee was allegedly unable to do. There was no evi- *919 deuce as to the appellee’s income capability before the accident. Therefore, there was no way for the trial court to determine to what degree the appellee’s earning capacity was impaired. Bonney v. San Antonio Transit Co., 325 S.W.2d 117 (Tex.1959). Consequently, there was minimal competent evidence regarding diminished earning capacity.

The appellee does offer competent proof of his bill from the attending physician, Dr. Stubbs. However, the bill from the University of Texas Medical Hospital (UTMB) was not accompanied by an affidavit with a completed jurat. Thus, the UTMB bill did not conform to art. 3737e, and was inadmissible. Tex.Rev.Civ.Stat. Ann. art. 3737e. No evidence of future medical expenses was given.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Nobles v. City of Austin
W.D. Texas, 2022
Levent Ulusal v. Lentz Engineering, L C
Court of Appeals of Texas, 2015
Monte Montgomery v. Monty Hitchcock
Court of Appeals of Texas, 2015
In the Interest of Z.J.W., a Child
185 S.W.3d 905 (Court of Appeals of Texas, 2006)
In Re ZJW
185 S.W.3d 905 (Court of Appeals of Texas, 2006)
Richard Fiske v. Debbie Fiske
Court of Appeals of Texas, 2004
Dawson v. Briggs
107 S.W.3d 739 (Court of Appeals of Texas, 2003)
Kelly Renee Dawson v. Carla K. Briggs
Court of Appeals of Texas, 2003
Jackson v. Gutierrez
77 S.W.3d 898 (Court of Appeals of Texas, 2002)
Jackson, Rodney v. Gutierrez, Juana
Court of Appeals of Texas, 2002
Strauss v. Continental Airlines, Inc.
67 S.W.3d 428 (Court of Appeals of Texas, 2002)
Regalado v. State
934 S.W.2d 852 (Court of Appeals of Texas, 1996)
Herbert v. Greater Gulf Coast Enterprises, Inc.
915 S.W.2d 866 (Court of Appeals of Texas, 1995)
Boat Superstore, Inc. v. Haner
877 S.W.2d 376 (Court of Appeals of Texas, 1994)
Avila v. Avila
843 S.W.2d 280 (Court of Appeals of Texas, 1992)
Pentes Design, Inc. v. Perez
840 S.W.2d 75 (Court of Appeals of Texas, 1992)
Southwestern Bell Media, Inc. v. Lyles
825 S.W.2d 488 (Court of Appeals of Texas, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
671 S.W.2d 915, 1984 Tex. App. LEXIS 5234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/popkowsi-v-gramza-texapp-1984.