Wal-Mart Stores, Inc. v. Odem

929 S.W.2d 513, 1996 WL 471301

• Court: Court of Appeals of Texas
• Decided: September 16, 1996
• Docket: 04-94-00693-CV
• Status: Published

Opinions

DUNCAN, Justice,

concurring and dissenting.

Because I do not believe Brandy Odem presented legally sufficient evidence to justify an award of actual damages, I respectfully dissent from the majority’s judgment insofar as it affirms the award of actual damages.¹

The only element of actual damages that Odem pleaded or attempted to prove was “severe mental anguish.” To establish her entitlement to damages for mental anguish, Odem was required to present either (1) “direct evidence of the nature, duration, and severity of their mental anguish, thus establishing a substantial disruption in the plaintiffs’ daily routine” or (2) other evidence that is legally and factually sufficient to establish “ ‘a high degree of mental pain and distress’ that is ‘more than mere worry, anxiety, vexation, embarrassment, or anger’-” Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex.1995) (quoting J.B. Custom Design & Bldg. v. Clawson, 794 S.W.2d 38, 43 (Tex.App.—Houston [1st Dist.] 1990, no writ)). Odem has failed to meet either test.

There is no direct evidence in this record of the nature, duration, or severity of Odem’s mental anguish other than her own testimony and that of her friend, Tony Chapa, that Odem was “embarrassed” following the incident; even immediately after the incident, Odem did not indicate a change of mood or attitude. Embarrassment is not “severe mental anguish.” Moreover, Odem’s own testimony conclusively disproves “a substantial disruption” to her daily routine. By Odem’s own admission, she never sought counseling as a result of the incident, she makes good grades in college and has no problem studying, and she leads a busy, active life.

Odem did testify that, as a result of the incident, she has a “phobia” of shopping. However, she also admitted that, within three months of the incident, she returned to this same Wal-Mart to shop; she returned to the same store two or three times the same spring in which the incident occurred; and she is sometimes employed on a temporary basis demonstrating hairspray in retail establishments. While I accept as true Odem’s testimony that she is “scared” to shop and was “very embarrassed” as a result of the incident, I do not agree that this testimony is legally sufficient to establish “severe mental anguish.” I would sustain Wal-Mart’s sixth point of error and reverse the judgment below and render judgment in Wal-Mart’s favor.

In response to this dissent, the majority states that “appellants do not complain that the evidence does not support an award for mental anguish, but rather the complaint is that the award is excessive and point of error six argues for a remittitur_” The majority then concludes that “[a] matter not raised by point on appeal is not reviewable.” In the first place, a complaint that a damage award is excessive is a complaint that the evidence does not support the award. See, e.g., Pope v. Moore, 711 S.W.2d 622, 624 (Tex.1986). That difference aside, I agree that Wal-Mart’s sixth point of error, which complains that “[t]he jury’s award of $10,000 in actual damages is excessive and remittitur is warranted,” purports to raise only the factual sufficiency of the evidence to support the award of mental anguish damages. However, this technical deficiency is not dispositive, because the body of Wal-Mart’s argument makes clear that Wal-Mart challenges both the legal and factual sufficiency of the evidence: “In this instance, Odem may have been embarrassed; but there is no evidence or insufficient evidence to establish she suffered grief, shame or humiliation of severity to recover for mental anguish....” Under these circumstances, Wal-Mart has adequately preserved its complaint that the evidence is legally insufficient to support the mental anguish award and its right to rendition. See, e.g., John Hill Cayce, Preserving Error on Appeal: A Practical Guide for Civil Appeals in Texas, 23 St. Mary’s L.J. 11, 75-76 (1991) (“appellate courts will review an incorrectly phrased point if the other portions of the brief sufficiently apprise the court of» the nature of the error”) (citing Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989); Pool v. Ford Motor Co., 715 S.W.2d 629, 633 (Tex.1986)).

Because the record before this court does not contain legally sufficient evidence to justify an award of actual damages, I would reverse the trial court’s judgment in its entirety and render judgment in Wal-Mart’s favor.

1 . I also disagree with the majority’s analysis of Odem’s causes of action. For instance, I would sustain Wal-Mart’s first point of error, which complains that the evidence is legally and factually insufficient to establish a false imprisonment without legal authority because there is no evidence in this record of a "willful detention.” See, e.g., Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644-45 (Tex.1995) (requisites of detention by threat for purposes of false imprisonment) (citing Martinez v. Goodyear Tire & Rubber Co., 651 S.W.2d 18, 20 (Tex.App.—San Antonio 1983, no writ)); see also, e.g., J.C. Penney Co. v. Romero, 318 S.W.2d 129, 131 (Tex.Civ.App.—San Antonio 1958, writ ref'd n.r.e.); Walker v. Martin, 129 S.W.2d 1149, 1151 (Tex.Civ.App.— San Antonio 1939, no writ). However, because the lack of legally sufficient evidence of actual damages cuts across all of Odem’s causes of action, it is on this basis that I dissent from the majority’s judgment.