Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 162nd Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-15-05169
Justices Schenck, Osborne, and Reichek
L. REICHEK, JUSTICE
Edes appeals the trial court's judgment rendered on a
jury verdict awarding him past medical expenses for injuries
sustained in an automobile accident. In five issues, Edes
contends the trial court erred by refusing jury issues on
lost wages, future income, and mental anguish; excluding his
physician's affidavit; holding a charge conference
without the presence of lead counsel; and not allowing him to
admit a document used by defense counsel to impeach him.
After reviewing the record, we overrule all issues and affirm
the trial court's judgment.
9, 2013, Jesus Arriaga was driving a pickup truck on
Northwest Highway in light rain. He was traveling at about 25
to 30 mph when he tried to brake for a red light at an
upcoming intersection. Arriaga's truck went into a skid
and struck a vehicle, driven by Raul Campos, stopped at the
light. Impact from the crash pushed Campos's vehicle into
the rear of Edes's vehicle. Arriaga said the grill, front
bumper, headlights, tires, and front axle of his truck were
damaged. Evidence did not indicate the damage to Campos's
vehicle, but the back glass of Edes's vehicle was broken
out and Edes later learned the frame was broken. Arriaga
testified he did not believe the impact to Edes's vehicle
was too severe because Edes was pushed forward only a
"couple inches, an inch." After the collision, the
drivers all exchanged insurance information. An ambulance
responded to the scene, but no one was transported. Arriaga
paid for the damage to both men's vehicles.
contrast to Arriaga's testimony, Edes testified the
"jolt" from the crash pushed his vehicle forward
about fifteen feet. He said the impact caused him to go
forward and back, and he hit the back of his head on the
headrest. He was checked and cleared by ambulance personnel
at the scene and drove away in his vehicle believing he was
uninjured. When he was about five minutes from home, however,
he said he started losing his peripheral vision. His wife
drove him to the emergency room, where he was evaluated and a
CT scan done. Edes said "everything looked okay,"
and he was released after his vision returned with the
suggestion to follow up with his primary care physician.
said that after the accident, he had various problems,
including headaches, loss of focus, memory issues, and
difficulty completing sentences, thoughts, and following
conversations. His headaches, which were weekly "for
months and years" after the accident, had tapered off.
But, Edes said, he suffers from depression, has bouts of
tearfulness and crying, cannot multi-task, and cannot think
logically "as much" as he did before but can think
on a "linear level." Edes said he had "several
MRIs" and other tests and his primary care physician
sent him to a person who specialized in "brain
injuries." He had memory and inkblot tests to assess his
recollection ability and was told he "did average."
He said he underwent brain therapy for six months but had no
other treatments because, he said, he was told "there is
no treatment for my type of brain injury. That it either gets
better or it doesn't." He takes Ritalin to improve
his focus and also takes testosterone shots, aspirin, and
cold medicine to alleviate other symptoms.
time of the accident, Edes worked as chief operations officer
for AMX, a construction company that handled federal
government contracts. He handled all marketing and was in
charge of all contracts, subcontracts, and all new proposals.
He served as the company's "front man" and
earned a base salary of $70, 000, plus bonuses that ranged
from between $5, 000 and $25, 000. He continued to work for
AMX for two to three years after the accident but eventually
could no longer perform his job. AMX reduced his pay because
there were no new contracts coming in before finally
terminating him. Before he left the company, he tried to find
the other employees new jobs as "we started closing the
company down." At the time of trial, Edes worked as an
insurance adjustor, field agent, where he earns about $30,
000 annually. He said the maximum salary for an insurance
adjustor is about $45, 000, which he should "hit"
in about seven years.
Dooley was a construction coordinator at AMX and reported to
Edes. The two had daily contact and she was able to observe
what he did for the company. Immediately following the
accident, she said Edes did not "look like
himself." She could tell he was in pain and had terrible
headaches. Over the next few months, he became "a shell
of his former self." She said he tried "a lot of
different things outside of medical" and even
investigated how to "remap" his brain. It got to
the point where he was "so unsure of himself" that
she would screen his calls so that he could take notes to
refresh his memory before speaking to someone. The most
difficult time, she said, was six months after the accident
when Edes, unable to focus, could not complete a deposition
in a case involving AMX. When she walked down to his car with
him, she said Edes cried because he could not do what he
needed to do. She said the accident "turned his entire
life inside out and sideways."
told jurors that before the accident, Edes was calm, quiet,
unassuming but funny, and was "a lot of fun to work
with." After the accident, he started to show signs of
frustration, which might lead to anger, and he would become
loud and animated at times, which was out of character for
him. He also was not as approachable as before. For a while,
he lost his sense of humor. He had a broad vocabulary and
could communicate with people in all walks of life, but after
the accident, he would forget thoughts midstream, would
struggle for words, and "just was not the same
person." He also lost his confidence and second-guessed
addition to witness testimony, the trial court pre-admitted
billing records for Edes's emergency room visit and more
than three years' of office visits and consultations with
medical professionals. No medical records regarding
Edes's treatment were introduced, and the trial court
excluded a letter from Edes's physician, Dr. James
Mitlyng, because, among other things, it was hearsay. Several
photographs depicting the damage to the vehicles of Arriaga
and Edes were also admitted.
both sides rested and during discussion on the jury charge,
Arriaga moved for a directed verdict on Edes's claims for
lost wages and mental anguish, arguing that Edes failed to
present any expert testimony to connect these damages to a
brain injury caused by the accident. The trial court granted
the motion. Following deliberations, the jury found Arriaga
caused the occurrence in question and awarded $7886.04 in
medical care expenses incurred in the past as damages that
resulted from the occurrence. The trial court reduced the
verdict to final judgment. Edes filed a timely motion for new
trial, which the trial court denied. This appeal ensued.
turning to the merits, we first address Arriaga's
assertion that Edes waived any complaint regarding the
judgment by drafting, submitting, and approving the judgment
signed by the trial judge. He argues the doctrine of
"invited error" precludes such complaints.
some circumstances, when a party files a motion to enter
judgment and the trial court grants the motion and renders
the requested judgment, the movant cannot later complain of
that judgment. Davenport v. Hall, No.
04-14-00581-CV, 2019 WL 1547617, at *7 (Tex. App.- San
Antonio Apr. 10, 2019, no pet. h.). The reason for this rule
is that a party may not request the trial court take an
action and then complain on appeal when the trial court did
what it was asked to do. Id.
supreme court has recognized, however, that "[t]here
must be a method by which a party who desires to initiate the
appellate process may move the trial court to render judgment
without being bound by its terms." Hooks v. Samson
Lone Star, Ltd. P'ship, 457 S.W.3d 52, 67 (Tex.
2015) (quoting First Nat'l Bank v. Fojtik, 775
S.W.2d 632, 633 (Tex. 1989) (per curiam)). A proposed
judgment submitted by a party need not note the submitting
party's disagreement with the contents of the judgment to
maintain the right to appeal. Andrew Shebay & Co.,
P.L.L.C. v. Bishop, 429 S.W.3d 644, 647 (Tex.
App.-Houston [1st Dist.] 2013, pet. denied). Rather, clear
objections in the trial court or post-trial proceedings
evidencing disagreement with the judgment are sufficient.
the record does not contain a motion for judgment; rather,
Edes filed a letter with the court submitting a proposed
judgment. The letter, signed by Edes's attorney, informed
the judge that counsel approved the judgment and was
forwarding a copy to opposing counsel for signature.
Ultimately, the judgment was signed by the trial judge. The