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Hernandez v. Moss

Court of Appeals of Texas, Eighth District, El Paso

November 9, 2017

FRANCISCO HERNANDEZ, Appellant,
v.
ROY MOSS AND VAUGH ANDERSON, Appellees.

         Appeal from the 68th District Court of Dallas County, Texas (TC# DC-12-02990)

          Before McClure, C.J., Rodriguez, and Hughes, JJ.

          OPINION

          YVONNE T. RODRIGUEZ, Justice

         Appellant Francisco Hernandez appeals an award of damages against him. The damage award was for injuries sustained by Roy Moss and Vaugh Anderson when Appellant struck their vehicle. In eight points of error, Appellant argues that the trial court improperly excluded evidence, improperly allowed certain expert testimony, failed to make findings of fact and conclusions of law, and he challenges the factual sufficiency of the award. He also claims that the Texas Property & Casualty Insurance Act requires we remand the case to assess certain credits and reductions allowed by the act. For the following reasons, we affirm.[1]

         BACKGROUND

         The underlying facts of this case are not complicated. Moss and Anderson were riding in the back of a company van, and at a stop light, it was struck from behind by a vehicle driven by Appellant. Moss and Anderson filed a suit for damages against Appellant, who stipulated to liability before trial. The parties agreed to waive a jury trial. The trial court awarded damages to Moss and Anderson for past and future medical expenses, past and future pain and suffering, and past and future physical impairment.

         At the time of the collision, Moss was fifty-six years' old and Anderson was forty-eight. Moss testified that he was healthy before the accident. After the accident, Moss suffered from neck pain, arm pain, lower-back pain, headaches, and had difficulty sleeping. He sought treatment from a chiropractor, Dr. Craig Himmelsehr, and an M.D., Dr. Michael Farrell. Dr. Himmelsehr testified that in his opinion Moss's injuries were caused exclusively by the collision. Moss, at the time of trial, continued to suffer discomfort after treatment and it had affected his lifestyle. Moss's wife, Belinda Brooks, corroborated Moss's testimony regarding his continuing pain.

         Anderson testified that he was in good health before the collision. During trial, Anderson testified that he had suffered from neck pain, arm and hand pain, lower-back pain, knee pain, headaches, blurred vision, and had difficulty sleeping. Like Moss, he also sought treatment from Dr. Himmelsehr and Dr. Farrell. Dr. Himmelsehr opined that Anderson's injuries were caused exclusively by the collision. Dr. Himmelsehr also found Anderson's MRI showed disc injuries. Anderson continued to suffer discomfort after treatment and told the trial court his lifestyle has been affected by his continuing pain. Anderson's mother, Lois Anderson, corroborated

         Anderson's testimony regarding his continued pain.

         During cross-examination of Moss, Appellant attempted to ask whether Moss had received any workers' compensation benefits. Moss objected to Appellant's questions regarding collateral sources, and the trial court sustained that objection. Then Appellant attempted to ask Moss if he had health insurance that would have covered his medical expenses; this drew the same objection and was sustained by the trial judge. Next, Appellant asked whether Moss had sought medical treatment before consulting an attorney. Moss objected, yet again, on the basis of relevance which was sustained.

         During cross-examination of Anderson, Appellant inquired into two personal injury claims that Anderson had filed nine and ten years before trial. The trial court allowed Anderson to testify that he had filed the claims and as to when he had last sought treatment, but then instructed Appellant to "move along." Appellant also asked Anderson about his potential claim for workers' compensation benefits, which was objected to and sustained. Appellant cross-examined

         Anderson regarding his criminal history, which drew a relevance objection. The trial court allowed Anderson to confirm he had been arrested for possession of marijuana and cocaine, then sustained the objection.

         DISCUSSION

         I. Failure to File Findings of Fact and Conclusions of Law

         Under the Texas Rules of Civil Procedure, a party to a bench trial is entitled to request findings of fact and conclusions of law from the district court. Tex.R.Civ.P. 296. The district court has a mandatory duty to respond to a timely request to file findings of fact and conclusions of law, and a failure to do so is error. Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989); Larry F. Smith, Inc. v. The Weber Co., Inc., 110 S.W.3d 611, 614 (Tex.App.--Dallas 2003, pet. denied). That error is presumed harmful unless the record affirmatively shows that the complaining party suffered no harm from the district court's failure. Willms v. Americas Tire Co., Inc., 190 S.W.3d 796, 801 (Tex.App.--Dallas 2006, pet. denied). The test to determine if an appellant has been harmed is whether, under the circumstances of the case, he must guess at the reason the trial court ruled against him. Id., at 801-02; see also Graham Cent. Station, Inc. v. Pena, 442 S.W.3d 261, 263 (Tex. 2014); Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996)("Error is harmful if it prevents an appellant from properly presenting a case to the appellate court"). The policy reason in encouraging trial courts to make findings is to "narrow the bases of judgment to only a portion of [the multiple] claims and defenses, thereby reducing the number of contentions that the appellant must raise on appeal." Larry F. Smith, Inc., 110 S.W.3d at 614 (citing 6 McDonald & Carlson, Texas Civil Practice 2d § 18:3 (1998)). Thus, if there is only a single ground of recovery or only a single defense, the appellant does not usually have to guess at the basis of the trial court's judgment and the objective of the rule is not thwarted. Willms, 190 S.W.3d at 801-02; Larry F. Smith, Inc., 110 S.W.3d at 614.

         Here, Appellant claims he followed proper procedure in requesting findings of fact and conclusions of law but the trial court failed to respond as required by Texas Rule of Civil Procedure 296. He asserts he must speculate as to the basis of the trial court rulings against him because "questions remain" regarding how the trial court arrived at the damages award. Appellant correctly points out that the trial court's failure to make findings is error and harm is presumed, and he requests we either reverse and remand or abate and allow the trial court to make the requested findings.

         But there was only a single ground of recovery in this case: negligence, and it was stipulated to by Appellant. He argues the lack of findings does not provide him with a basis "for any of the other grounds of recovery, " suggesting that the varying damage awards should be considered multiple grounds of recovery, and then points to Tenery and Willms to demonstrate that this was harmful and requires the relief he requests. We find this argument unpersuasive. The ground for recovery at issue here is negligence, and the past and future medical expenses are the damages awarded for that single ground of recovery. As a result, Appellant is not placed in the position of speculating as to the basis of the trial court's judgment of negligence and Point of Error One is overruled.

         II. Failure to Make an Offer of Proof

         Our law provides, under certain conditions, that a party may claim error in a ruling by the trial court to admit or exclude evidence. Texas Rule of Evidence 103 reads in relevant part as follows:

(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:
. . .
(2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.
. . .
(c) Court's Statement About the Ruling; Directing an Offer of Proof. The court must allow a party to make an offer of proof outside the jury's presence as soon as practicable--and before the court reads its charge to the jury. The court may make any statement about the character or form of the evidence, the objection made, and the ruling. At a party's request, the court must direct that an offer of proof be made in question-and-answer form. Or the court may do so on its own.

Tex.R.Evid. 103.[2]

         In order to preserve the issue for appellate review, whether it is the testimony of one's own witness or that of the opponent, the appellant must make an offer of proof or a bill of exception to show what the witness's testimony would have been. In re A.M., 418 S.W.3d 830, 840 (Tex.App.--Dallas 2013, no pet.); see also Perez v. Lopez, 74 S.W.3d 60, 66-67 (Tex.App.--El Paso 2002, no pet.); Anderson v. Higdon, 695 S.W.2d 320, 325 (Tex.App.--Waco 1985, writ ref'd n.r.e.). The appellate court cannot make a harm analysis without an offer of proof unless the substance was apparent from context. In re A.M., 418 S.W.3d at 840. General comments on the nature of the testimony, the reason it is being offered, or why it is admissible are not sufficient. Id. The appellate court may be able to discern from the record the nature of the evidence and the propriety of the trial court's ruling, but without ...


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