Court of Appeals of Texas, Eighth District, El Paso
from the 68th District Court of Dallas County, Texas (TC#
McClure, C.J., Rodriguez, and Hughes, JJ.
T. RODRIGUEZ, Justice
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.
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.
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
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
testimony regarding his continued pain.
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
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
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.
Failure to File Findings of Fact and Conclusions of
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.
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
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.
Failure to Make an Offer of Proof
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
(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.
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 ...