Court of Appeals of Texas, Sixth District, Texarkana
Submitted: January 29, 2018
Appeal from the 5th District Court Bowie County, Texas Trial
Court No. 13-C-0211-005
Morriss, C.J., Moseley and Burgess, JJ.
C. Moseley Justice
February 22, 2011, the stopped automobile which Madison
Singleton was driving was struck from behind by the 25,
000-pound dump truck driven by Terry Bowman while Bowman was
in the course and scope of his employment with Clifford P.
Gore, doing business as Code J. Transport. Singleton sued
Bowman and Gore for personal injuries allegedly sustained as
a result of the accident. Following a trial in which
liability was uncontested, a Bowie County jury awarded
Singleton $5, 000.00 for physical pain and mental anguish
sustained in the past and $7, 000.00 for loss of earning
capacity sustained in the past. No sums were awarded for
other elements of damage, including expenses for medical care
sustained in the past.
appeal, Singleton argues (1) that the trial court erred in
excluding medical expense affidavits and (2) that the
jury's finding of zero damages for medical care expenses
in the past was not supported by factually sufficient
evidence. We find that the trial court erred in excluding
Singleton's timely served medical expense affidavits and
that Singleton was harmed as a result of that exclusion.
Accordingly, we reverse the trial court's judgment and
remand for a new trial on damages.
The Trial Court Erred in Excluding Singleton's
Timely Served Medical Expense Affidavits
18.001 of the Texas Civil Practice and Remedies Code states:
(b) Unless a controverting affidavit is served as provided by
this section, an affidavit that the amount a person charged
for a service was reasonable at the time and place that the
service was provided and that the service was necessary is
sufficient evidence to support a finding of fact by judge or
jury that the amount charged was reasonable or that the
service was necessary.
(c) The affidavit must: . . . .
(3) include an itemized statement of the service and charge.
(d) The party offering the affidavit in evidence or the
party's attorney must serve a copy of the affidavit on
each other party to the case at least 30 days before the day
on which evidence is first presented at the trial of the
case. Except as provided by the Texas Rules of Evidence, the
records attached to the affidavit are not required to be
filed with the clerk of the court before the trial commences.
Tex. Civ. Prac. & Rem. Code Ann. § 18.001 (West
obtained affidavits from several medical service providers
showing the total amount of charges made, together with
adjustments and write-offs, amounts paid, and amounts owed.
The first page of each affidavit stated, "Attached to
this affidavit are records that provide an itemized statement
of the service and the charge for the service. . . . The
attached records are a part of this affidavit."
See Tex. Civ. Prac. & Rem. Code Ann. §
18.002(b-1) (West 2015) (setting forth the form of the
affidavit). The question in this case concerns whether
Singleton complied with Section 18.001(d)'s requirement
to serve a copy of the ...