                                 NO. 12-07-00411-CV

                       IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

STEPHEN WILLIAM KENTON,                           §           APPEAL FROM THE SEVENTH
APPELLANT

V.                                                §           JUDICIAL DISTRICT COURT OF

RAMIRO OLVERA,
APPELLEE                                          §           SMITH COUNTY, TEXAS


                                   MEMORANDUM OPINION
       This appeal concerns the amount of damages for past and future medical expenses
attributable to an auto accident. In a bench trial, the trial court found for the plaintiff, Appellant
Stephen Kenton, and awarded $3,000.00 for past physical pain and mental anguish, disfigurement,
and physical impairment suffered as a result of the accident and damages for past medical expenses
in the amount of $482.00. Kenton presents two issues on appeal. In his first issue, Kenton contends
the trial court erred in not awarding damages for past medical expenses in the sum of $2,642.00. In
his second issue, Kenton claims the trial court erred in not awarding $8,000.00 in future medical
expenses despite what Kenton claims was Appellee Ramiro Olvera’s judicial admission that
damages for future medical expenses in that amount was fair and reasonable. We affirm.


                                           BACKGROUND
       On September 7, 2002, Kenton was the driver of a Chevrolet pickup pulling a bass boat on
a trailer. Kenton’s vehicle was stopped at an intersection on Gentry Parkway in Tyler, Texas,
waiting for the traffic to start moving. In his rear view mirror, Kenton saw a pickup truck behind
him, in his lane and accelerating toward the rear of his vehicle. Realizing that a collision was
certain, Kenton pressed hard on the brake of his stopped truck with his right foot and braced himself
for the impact. The pickup plowed into the boat and boat trailer Kenton was towing imbedding the
boat’s propeller in its grill and knocking Kenton’s truck and trailer fifteen feet down the roadway.
Kenton got out of his pickup and was walking back toward the other vehicle when its driver
suddenly backed his vehicle, then sped away down a side street scattering auto parts and fluid.
Kenton saw and immediately recorded the license number of the vehicle.
       At trial, Kenton identified Olvera as the driver of the 1990 Chevrolet pickup that had crashed
into his boat and trailer. Olvera maintained he was in Oklahoma when the wreck occurred and could
not have been the driver.
       Two weeks after the accident, Kenton consulted F. Corry Payne, III, M.D. complaining of
pain inside the knee that was more severe when he had to walk, kneel, or squat. The x-rays of the
right knee were normal. Dr. Payne determined that Kenton had sustained “a right knee jamming
injury to the articular cartilage and subchondral bone.” At a follow up visit on October 10, 2002,
Dr. Payne’s examination revealed a full range of motion but Grade IV crepitation or popping with
flexion or extension. Dr. Payne scheduled an MRI examination and another visit for two weeks
later. Kenton cancelled the MRI citing financial problems. He returned sixteen months later on
February 16, 2004, complaining that his knee had not improved. Kenton brought an open air MRI
study with him that had been ordered by a chiropractor he had consulted only recently. At this point,
Dr. Payne told him that arthroscopy might be the only solution, and Kenton told him he wished to
proceed. However, once again he did not return.
       At trial, two and one-half years later, Kenton testified that he had scheduled the operation for
August 23, 2006. He testified that he had delayed the operation because he did not have the money
to pay for it. Kenton scheduled the operation shortly after Dr. Payne’s deposition during which the
doctor testified that he had not seen Kenton for two and one-half years.
       Kenton filed affidavits in compliance with Texas Civil Practice and Remedies Code section
18.001 stating that the amounts charged for his medical expenses were reasonable and the services
provided were necessary. The affidavits establish the amounts charged and services provided as
follows:




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       $ 440.00                   Corry Payne, M.D.
       $ 685.00                   Accident & Injury Pain Center
       $1475.00                   White Rock Open Air MRI
       $ 42.00                    Lone Star Radiology

Olvera filed no affidavit as provided by section 18.001 controverting the reasonableness or necessity
of the expenses incurred.
       After the close of evidence, the trial court ordered the parties to submit findings of fact and
conclusions of law. Kenton asked the court to find that he would need surgery to repair the damage
to his knee from the collision. Kenton asked the court to find that $12,000.00 was a reasonable and
necessary expense for that purpose.
       Olvera, in his proposed findings, asked the court to find that he “was not involved and
therefore not negligent on the occasion of the collision . . . .” His proposed finding of fact 11 reads
as follows:


               Fair and reasonable compensation for medical expenses which Stephen Kenton will, in
       reasonable probability, incur in the future as a result of the accident of September 7, 2002, in which
       Ramiro Olvera was not involved, is $8,000.00.



       The trial court found that, as a result of his injuries sustained in the car wreck, Kenton
incurred reasonable and necessary medical expenses in the past for treatment by Dr. Payne in the sum
of $440.00 and by Lone Star Radiology in the sum of $42.00. The trial court further found that
Kenton would not need future medical care for injuries sustained in the wreck.


                       EVIDENTIARY EFFECT OF SECTION 18.001 AFFIDAVIT
                        CONCERNING COST AND NECESSITY OF SERVICES
       In his first issue, Appellant complains that the trial court’s award of $482.00 for past medical
expenses was against the great weight of the evidence because the amount of medical expenses
proven as reasonable and necessary by uncontroverted affidavits pursuant to the Texas Civil Practice
and Remedies Code section 18.001 amounted to $2,642.00.
Applicable Law
       Section 18.001 provides that

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       [u]nless a controverting affidavit is filed 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.



TEX . CIV . PRAC. & REM . CODE ANN . § 18.001(b) (Vernon 2008). An affidavit in compliance with
section 18.001 is sufficient to show that the medical expenses incurred were reasonable and
necessary, but it does not establish that those damages were caused by the defendant’s negligence
and therefore does not establish the plaintiff’s entitlement to those damages as a matter of law.
Sloan v. Molandes, 32 S.W.3d 745, 752 (Tex. App.–Beaumont 2000, no pet.); Beauchamp v.
Hambrick, 901 S.W.2d 747, 749 (Tex. App.–Eastland 1995, no writ).
       A trial court’s findings of fact and a jury’s verdict are reviewed for factual sufficiency of the
evidence by the same legal standard. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). In reviewing
factual sufficiency, the court of appeals must weigh all the evidence. Id. “Findings may be
overturned only if they are so against the great weight and preponderance of the evidence as to be
clearly wrong and unjust.” Id. In a bench trial, the trial court is the sole judge of the credibility of
the witnesses and the weight to be given their testimony. Texas W. Oil & Gas Corp. v. El Paso Gas
Trans. Co., 631 S.W.2d 521, 524 (Tex. App.–El Paso 1982, writ ref’d n.r.e.). The trial court may
accept or reject any witness’s testimony in whole or in part. Id.
Discussion
       Kenton argues that there was absolutely no testimony that the treatment received from all the
providers was for anything but for injuries caused by the collision. He further points out that there
was no controverting affidavit filed challenging the reasonableness of or the necessity for those
services.
       In his deposition testimony, Dr. Payne testified without objection that he could not think of
any reason to see a chiropractor for a knee injury. In his testimony, Dr. Payne also indicated that the
open air MRI performed by White Rock Open Air MRI was valueless as a diagnostic aid. Dr. Payne
had at the outset recommended an enclosed MRI. Therefore, there was evidence in the record,
admitted without objection, that Kenton’s expenses incurred at Accident and Injury Pain Center
($685.00) and White Rock Open Air MRI ($1,475.00) were neither reasonable nor necessary. Upon
the submission of affidavits in compliance with section 18.001 attesting to the reasonableness and

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necessity of medical expenses, the statute provides for the exclusion of evidence to the contrary, in
the absence of a properly filed controverting affidavit. Hong v. Bennett, 209 S.W.3d 795, 800 (Tex.
App.–Fort Worth 2006, no pet.). An uncontroverted section 18.001 affidavit provides legally
sufficient but not conclusive evidence to support a finding that the amount charged for a service was
reasonable and the service necessary. Id.
       The affidavits of the reasonableness of and necessity for Kenton’s medical expenses were
not conclusive. The trial court was justified in inferring from Dr. Payne’s testimony that the
expenses Kenton incurred at the Accident and Injury Pain Center and White Rock Open Air MRI
were, in fact, not reasonable and unnecessary for his treatment. The trial court’s finding was not
against the great weight and preponderance of the evidence. Kenton’s first issue is overruled.


                                       JUDICIAL ADMISSION
       In his second issue, Kenton complains that the trial court erred in refusing to give effect to
Olvera’s proposed finding of fact number 11 as a judicial admission that Kenton would require
future medical expenses in the amount of $8,000.00.
Applicable Law
       The elements required for a judicial admission are (1) a statement made during the course
of a judicial proceeding, (2) that is contrary to an essential fact or defense asserted by the person
making the admission, (3) that is deliberate, clear, and unequivocal, (4) that, if given conclusive
effect, would be consistent with public policy, and (5) that is not destructive of the opposing party’s
theory of recovery. Laredo Med. Group Corp. v. Mireles, 155 S.W.3d 417 , 429 (Tex. App.–San
Antonio 2004, writ denied).
Discussion
       Kenton characterizes as a judicial admission Olvera’s proposed finding of fact number 11
that “[f]air and reasonable compensation for medical expenses which Stephen Kenton will, in
reasonable probability, incur in the future as a result of the accident of September 7, 2002, in which
Ramiro Olvera was not involved, is $8,000.00.” (Emphasis added.).
       Like Olvera’s other proposed findings, the finding in question, if adopted, would have been
entirely destructive of Kenton’s recovery. Therefore, the trial court did not err in failing to give


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effect to the proposed finding as a judicial admission that Kenton would require $8,000.00 in future
medical expenses. Appellant’s second issue is overruled.


                                                      DISPOSITION
         The judgment of the trial court is affirmed.




                                                                                 BILL BASS
                                                                                       Justice




Opinion delivered April 30, 2009.
Panel consisted of Worthen. C.J., Hoyle, J., and Bass, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.




                                                       (PUBLISH)



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