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Edes v. Arriaga

Court of Appeals of Texas, Fifth District, Dallas

May 24, 2019


          On Appeal from the 162nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-15-05169

          Before Justices Schenck, Osborne, and Reichek



         Anthony 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.[1]

         Factual Background

         On May 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.

         In 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.

         Edes 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.

         At the 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.

         Sandra 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."

         Dooley 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 himself.

         In 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.

         After 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.

         Invited Error

         Before 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.

         Under 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.

         The 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. Id.

         Here, 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 ...

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