IN THE TENTH COURT OF APPEALS
No. 10-19-00310-CV
STEPHEN MCGUIRE AND TRUDY MCGUIRE, Appellants v.
ASSEMBLY BY US LLC, Appellee
From the 414th District Court McLennan County, Texas Trial Court No. 2016-3717-5
MEMORANDUM OPINION
Trial of this personal injury action was to the court. Stephen and Trudy McGuire
were the plaintiffs in the trial court. Assembly by Us, LLC, was one of the defendants in
the trial court. The McGuires’ claims as to the other defendants were disposed of in the
trial court; Assembly is the only appellee in this appeal. After it had heard the evidence,
the trial court entered a money judgment for various elements of damages in favor of the
McGuires for $263,500. However, the trial court awarded “0.00” damages on Trudy’s claim related to a reduction in her monthly retirement benefits brought about by her early
retirement. The trial court also awarded “0.00” damages in connection with Trudy’s
claim that she lost medical benefits because she had to retire early. Those two zero
damage awards are the subject of this appeal. They maintain that the evidence is both
legally and factually insufficient to support that portion of the trial court’s judgment.
Because we find that the evidence is legally and factually sufficient to support the trial
court’s judgment, we affirm.1
Stephen McGuire was born on January 21, 1940. Trudy McGuire was born on
December 19, 1944. Stephen and Trudy had been married for 52 years when this case
was tried on October 20, 2018.
Stephen suffered a stroke in September 2014. To make things easier to care for
Stephen, Trudy began a search for two special beds to replace the king size bed that she
and Stephen had at the time. Trudy talked on the phone to a man named Daryl. Daryl
was employed by one of the other original defendants. Daryl told Trudy that he could
supply an “Adjustable Sleep System” that would meet the McGuires’ needs.
Trudy ordered two of the sleep systems on December 15, 2014. When Trudy
placed the order, Daryl asked her whether the floor of the room where the beds were to
1 Appellee, Assembly by Us, LLC, did not file a brief in this case. Assembly has notified this Court that it terminated its status as an LLC with the State of Texas. That issue was not litigated in the trial court, and it has not been briefed in this court. Therefore, we will not address that issue. This case is submitted on Appellant’s brief and the record.
McGuire v. Assembly by Us LLC Page 2 be placed was a smooth, hard surface floor. Trudy told Daryl that it was. Daryl then
mentioned that he would include some caster cups in the shipment and that it would be
necessary to use the caster cups so that the beds would not slide.
The evidence indicates that there was a chain of actors who performed different
roles in getting these types of beds to the ultimate customer. The final link in that chain
in this case was Assembly.
Assembly delivered and assembled the beds on December 24, 2014. There is
evidence in the record to indicate that there were no caster cups in with the shipment.
The record contains evidence that Assembly personnel knew that it was dangerous to
install the beds without caster cups. Rather than warn the McGuires of that danger, on-
site Assembly personnel told Trudy that that should not be a problem so long as the
casters remained locked.
After Assembly personnel left, Trudy attempted to transfer Stephen from his
wheelchair into his new bed. Stephen and Trudy had been trained in the transfer
procedure. During the transfer process on this occasion, the new bed slid from under
Stephen; both Stephen and Trudy fell to the floor.
Stephen suffered soreness, bruising and aggravated an ankle injury in the fall, but
was not seriously injured. Trudy’s head struck the floor.
McGuire v. Assembly by Us LLC Page 3 Prior to the fall on Christmas Eve 2014, Trudy had broken her neck. As a result of
that previous injury, Trudy received medical treatment that included surgical fusion
procedures as well as procedures to install hardware in Trudy’s neck and skull.
Because of neck and back pain that she experienced after the December 24, 2014,
incident, Trudy went to the emergency room on December 26. Sometime later, Dr.
Harold Bruce Hamilton, Trudy’s neurosurgeon, discovered that the fall had
compromised the hardware that he had previously placed in Trudy’s neck and skull. Dr.
Hamilton testified that Trudy’s condition was good up until the time that she fell on
December 24.
After the December 24 fall, Trudy received several facet nerve injections for pain.
Ultimately, in May 2015, Dr. Hamilton performed surgery on Trudy to correct some of
the problems with the hardware that he had previously placed in Trudy’s neck and skull.
Further problems with the hardware necessitated additional surgeries in June 2017 and
in May 2018. Trudy also received additional facet nerve injections and underwent other
pain management efforts. Dr. Hamilton testified that Trudy’s pain was better but that
she would suffer some pain for the rest of her life.
Trudy began working in the McLennan County archives department on August
12, 1998. In her work, Trudy had to walk long distances, climb ladders, lift books that
weighed from twenty-five to fifty pounds, and move heavy boxes. After Trudy’s fall, she
spent some time off, but returned to work.
McGuire v. Assembly by Us LLC Page 4 Claire McDaniels, the records management officer for McLennan County, testified
that Trudy was able to do her job before the December accident but not after; she walked
slower and was stooped over.
Trudy testified as to other things other than her job that she could no longer do
after she fell in December. She was limited in her housework, gardening, church
attendance, Stephen’s care, interaction with grandchildren, driving, and other activities.
Trudy’s son, Ian, testified similarly as to Trudy’s limitations.
Although Trudy intended to retire in August 2018, when she had completed
twenty years of service, she testified that she took early retirement in January 2016, about
one year after the December 2014 fall, because she could no longer do her work.
The evidence shows that because Trudy retired before she had completed twenty
years of employment with McLennan County, her retirement benefit was $700 less per
month than it would have been had she worked until she had served a full twenty years.
Also, because she retired early, Trudy was not eligible for insurance coverage.
On August 7, 2019, the trial court entered its judgment. In that judgment, the trial
court awarded the McGuires $263,500. The trial court apportioned that amount as
follows:
To Stephen: Pain and suffering $1,000.00 Reimbursement of Care 22,500.00 To Trudy: Past Mental Anguish $40,000.00 Future Mental Anguish 10,000.00 McGuire v. Assembly by Us LLC Page 5 Past Pain and Suffering 100,000.00 Future Pain and Suffering 50,000.00 Past Disfigurement 5,000.00 Past Impairment 25,000.00 Future Impairment 10,000.00 Loss of Retirement Benefits 0.00 Loss of Medical Benefits 0.00
Again, it is only the trial court’s failure to award damages for loss of retirement
benefits and medical benefits that is the subject of this appeal. The McGuires first
complain that the evidence is legally insufficient to support the zero damage awards.
Although the McGuires requested that the trial court make findings of fact, it did
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IN THE TENTH COURT OF APPEALS
No. 10-19-00310-CV
STEPHEN MCGUIRE AND TRUDY MCGUIRE, Appellants v.
ASSEMBLY BY US LLC, Appellee
From the 414th District Court McLennan County, Texas Trial Court No. 2016-3717-5
MEMORANDUM OPINION
Trial of this personal injury action was to the court. Stephen and Trudy McGuire
were the plaintiffs in the trial court. Assembly by Us, LLC, was one of the defendants in
the trial court. The McGuires’ claims as to the other defendants were disposed of in the
trial court; Assembly is the only appellee in this appeal. After it had heard the evidence,
the trial court entered a money judgment for various elements of damages in favor of the
McGuires for $263,500. However, the trial court awarded “0.00” damages on Trudy’s claim related to a reduction in her monthly retirement benefits brought about by her early
retirement. The trial court also awarded “0.00” damages in connection with Trudy’s
claim that she lost medical benefits because she had to retire early. Those two zero
damage awards are the subject of this appeal. They maintain that the evidence is both
legally and factually insufficient to support that portion of the trial court’s judgment.
Because we find that the evidence is legally and factually sufficient to support the trial
court’s judgment, we affirm.1
Stephen McGuire was born on January 21, 1940. Trudy McGuire was born on
December 19, 1944. Stephen and Trudy had been married for 52 years when this case
was tried on October 20, 2018.
Stephen suffered a stroke in September 2014. To make things easier to care for
Stephen, Trudy began a search for two special beds to replace the king size bed that she
and Stephen had at the time. Trudy talked on the phone to a man named Daryl. Daryl
was employed by one of the other original defendants. Daryl told Trudy that he could
supply an “Adjustable Sleep System” that would meet the McGuires’ needs.
Trudy ordered two of the sleep systems on December 15, 2014. When Trudy
placed the order, Daryl asked her whether the floor of the room where the beds were to
1 Appellee, Assembly by Us, LLC, did not file a brief in this case. Assembly has notified this Court that it terminated its status as an LLC with the State of Texas. That issue was not litigated in the trial court, and it has not been briefed in this court. Therefore, we will not address that issue. This case is submitted on Appellant’s brief and the record.
McGuire v. Assembly by Us LLC Page 2 be placed was a smooth, hard surface floor. Trudy told Daryl that it was. Daryl then
mentioned that he would include some caster cups in the shipment and that it would be
necessary to use the caster cups so that the beds would not slide.
The evidence indicates that there was a chain of actors who performed different
roles in getting these types of beds to the ultimate customer. The final link in that chain
in this case was Assembly.
Assembly delivered and assembled the beds on December 24, 2014. There is
evidence in the record to indicate that there were no caster cups in with the shipment.
The record contains evidence that Assembly personnel knew that it was dangerous to
install the beds without caster cups. Rather than warn the McGuires of that danger, on-
site Assembly personnel told Trudy that that should not be a problem so long as the
casters remained locked.
After Assembly personnel left, Trudy attempted to transfer Stephen from his
wheelchair into his new bed. Stephen and Trudy had been trained in the transfer
procedure. During the transfer process on this occasion, the new bed slid from under
Stephen; both Stephen and Trudy fell to the floor.
Stephen suffered soreness, bruising and aggravated an ankle injury in the fall, but
was not seriously injured. Trudy’s head struck the floor.
McGuire v. Assembly by Us LLC Page 3 Prior to the fall on Christmas Eve 2014, Trudy had broken her neck. As a result of
that previous injury, Trudy received medical treatment that included surgical fusion
procedures as well as procedures to install hardware in Trudy’s neck and skull.
Because of neck and back pain that she experienced after the December 24, 2014,
incident, Trudy went to the emergency room on December 26. Sometime later, Dr.
Harold Bruce Hamilton, Trudy’s neurosurgeon, discovered that the fall had
compromised the hardware that he had previously placed in Trudy’s neck and skull. Dr.
Hamilton testified that Trudy’s condition was good up until the time that she fell on
December 24.
After the December 24 fall, Trudy received several facet nerve injections for pain.
Ultimately, in May 2015, Dr. Hamilton performed surgery on Trudy to correct some of
the problems with the hardware that he had previously placed in Trudy’s neck and skull.
Further problems with the hardware necessitated additional surgeries in June 2017 and
in May 2018. Trudy also received additional facet nerve injections and underwent other
pain management efforts. Dr. Hamilton testified that Trudy’s pain was better but that
she would suffer some pain for the rest of her life.
Trudy began working in the McLennan County archives department on August
12, 1998. In her work, Trudy had to walk long distances, climb ladders, lift books that
weighed from twenty-five to fifty pounds, and move heavy boxes. After Trudy’s fall, she
spent some time off, but returned to work.
McGuire v. Assembly by Us LLC Page 4 Claire McDaniels, the records management officer for McLennan County, testified
that Trudy was able to do her job before the December accident but not after; she walked
slower and was stooped over.
Trudy testified as to other things other than her job that she could no longer do
after she fell in December. She was limited in her housework, gardening, church
attendance, Stephen’s care, interaction with grandchildren, driving, and other activities.
Trudy’s son, Ian, testified similarly as to Trudy’s limitations.
Although Trudy intended to retire in August 2018, when she had completed
twenty years of service, she testified that she took early retirement in January 2016, about
one year after the December 2014 fall, because she could no longer do her work.
The evidence shows that because Trudy retired before she had completed twenty
years of employment with McLennan County, her retirement benefit was $700 less per
month than it would have been had she worked until she had served a full twenty years.
Also, because she retired early, Trudy was not eligible for insurance coverage.
On August 7, 2019, the trial court entered its judgment. In that judgment, the trial
court awarded the McGuires $263,500. The trial court apportioned that amount as
follows:
To Stephen: Pain and suffering $1,000.00 Reimbursement of Care 22,500.00 To Trudy: Past Mental Anguish $40,000.00 Future Mental Anguish 10,000.00 McGuire v. Assembly by Us LLC Page 5 Past Pain and Suffering 100,000.00 Future Pain and Suffering 50,000.00 Past Disfigurement 5,000.00 Past Impairment 25,000.00 Future Impairment 10,000.00 Loss of Retirement Benefits 0.00 Loss of Medical Benefits 0.00
Again, it is only the trial court’s failure to award damages for loss of retirement
benefits and medical benefits that is the subject of this appeal. The McGuires first
complain that the evidence is legally insufficient to support the zero damage awards.
Although the McGuires requested that the trial court make findings of fact, it did
not. The McGuires did not call that failure to the attention of the trial court. There is no
complaint on appeal as to the trial court’s failure to make those findings. It is implied
that the trial court made all findings that are necessary to support the judgment. Worford
v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).
In an appeal from the trial court's judgment in a bench trial, a party may challenge
the legal and factual sufficiency of the evidence to support the judgment as in any other
case. Huang v. Don McGill Toyota, Inc., 209 S.W.3d 674, 677 (Tex. App. —Houston [14th
Dist.] 2006, no pet.)(citing Roberts Express, Inc. v. Expert Transp., Inc., 842 S.W.2d 766, 769–
70 (Tex. App.—Dallas 1992, no writ)). We are to review sufficiency of the evidence issues
after a bench trial the same as we would review issues that involve sufficiency of the
evidence to support jury findings. Catalina v. Blasdel, 881 S.W.2d 295 (Tex. 1994).
McGuire v. Assembly by Us LLC Page 6 The test for legal sufficiency is “whether the evidence at trial would enable
reasonable and fair-minded people to reach the verdict under review.” City of Kellar v.
Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We are to credit favorable evidence, if a
reasonable factfinder could, and we disregard contrary evidence unless a reasonable
factfinder could not. Id. Also, we note that the factfinder is the sole judge of the
credibility of the witnesses and of the weight to be given to their testimony. Id. at 819.
The Supreme Court in Dow Chemical stated the standard as follows:
When a party attacks the legal sufficiency of an adverse finding on an issue on which she has the burden of proof, she must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989); Hall, Standards of Review in Texas, 29 ST. MARY'S L.J. 351, 481–82 (1998). In reviewing a “matter of law” challenge, the reviewing court must first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. Sterner, 767 S.W.2d at 690; Hall, supra, at 482. If there is no evidence to support the finding, the reviewing court will then examine the entire record to determine if the contrary proposition is established as a matter of law. Sterner, 767 S.W.2d at 690; Hall, supra, at 482. The point of error should be sustained only if the contrary proposition is conclusively established. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983); Hall, supra, at 482. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241–42 (Tex. 2001).
When we review a finding for factual sufficiency, we consider all the evidence and
will set aside the finding only if it is so contrary to the overwhelming weight of the
evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
McGuire v. Assembly by Us LLC Page 7 The McGuires maintain that they conclusively established their entitlement to
damages for the loss of increased retirement and insurance benefits.
At trial, Assembly’s counsel asked Trudy whether she thought that her age could
account for some of her problems. Trudy responded: “I don’t consider age necessarily a
problem. I think that you do what you can do and what you want to do. If you want to
do it bad enough, you can usually do it.” It is apparent from Trudy’s testimony that it
was important to her that she personally take care of Stephen; she did not want any help.
Trudy testified that she had “rather float my own boat than have someone else float it for
me. I have always been that way. And I guess I will die being that way.” Trudy
attributed her being able to take care of Stephen to her lifting the heavy things at work.
Trudy’s desire to take care of her husband of 52 years is indeed commendable.
However, a reasonable person could attribute her strong desire to personally care for
Stephen to be the reason for her early retirement, not the injuries received in the fall.
As applicable to this case, negligence consists of a legal duty owed by one party to
another, a breach of that duty, and damages that proximately result from the breach.
Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990).
The trial court clearly attributed all other damages to the December 24 fall. We
can see no reason for the trial court’s treating the early retirement and insurance issues
differently from the other damage awards except that the fall did not proximately cause
the early retirement. A reasonable person could have so found. Trudy’s testimony would
McGuire v. Assembly by Us LLC Page 8 support that finding. The McGuires had the burden of proof on the early retirement
issues. A review of the record shows that the McGuires did not establish the issue as a
matter of law. We overrule the McGuires’ first issue on appeal.
In their second issue on appeal, the McGuires claim that the evidence is factually
insufficient to support the zero damages award. We have set out the standard of review
earlier. We have considered all the evidence in this record and cannot find that the
judgment of the trial court is so contrary to the overwhelming weight of the evidence as
to be clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We
overrule the McGuires’ second issue on appeal.
We affirm the judgment of the trial court.
JIM R. WRIGHT Senior Chief Justice
Before Justice Johnson, Justice Smith, and Justice Wright2 Affirmed Opinion delivered and filed December 22, 2021 [CV06]
2 The Honorable Jim R. Wright, Senior Chief Justice (Retired) of the Eleventh Court of Appeals, sitting by assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV'T CODE §§ 74.003, 75.002, 75.003.
McGuire v. Assembly by Us LLC Page 9