                            NUMBER 13-17-00664-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

ANA VILLA,                                                                Appellant,

                                          v.

FELICIA MARTINEZ,                                                          Appellee.


                   On appeal from the 103rd District Court
                        of Cameron County, Texas.



                       MEMORANDUM OPINION
           Before Justices Benavides, Longoria, and Hinojosa
               Memorandum Opinion by Justice Longoria

      Appellant Ana Villa sued appellee Felicia Martinez for injuries she sustained in a

car collision. A jury found both Villa and Martinez 50% at fault for the car accident;

however, the jury awarded no damages to Villa. By one issue, Villa argues that the trial
court erred by signing a take-nothing judgment on her claims when she presented

uncontroverted evidence of her damages. We affirm.

                                     I. BACKGROUND

       Villa sued Martinez for negligence after her vehicle collided with Martinez’s vehicle

at an intersection in June of 2009. The case proceeded to jury trial, at which the following

evidence was adduced.

       Villa testified that she immediately felt pain in her neck and that she started

experiencing a severe headache. She further testified that she could not move her head

and went into an asthmatic attack because she could not move to find her inhaler. Villa

also testified that she saw a chiropractor because her hands and feet were numb after

the accident and because she felt a burning sensation in her back. Villa was attending

dental assistant school before the accident. But she testified that after the accident, she

had to drop out of the school because she was no longer able to handle the dental

instruments due to the tingling in her hands.

       Villa’s medical expert Dr. Juan Caquias opined that the accident caused Villa to

have a herniated center disc in her vertebrae because there were several tiny bulges

along Villa’s spine. He further opined that the medical treatment that she received in the

amount of $16,567 was necessary and reasonable to treat her injuries. According to

Martinez’s opening statement, her trial strategy involved conceding that Villa was injured.

But Martinez insisted that the accident was Villa’s fault and “[w]e don’t think she was

injured as badly as perhaps [Villa’s counsel] would like you to be believe.” Thus, Martinez

asserted that Villa should not recover any damages because her injuries were minor and

the accident was Villa’s fault.

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       The jury found that both Martinez and Villa were 50% at fault for the collision and

awarded Villa zero damages. Villa moved for judgment notwithstanding the verdict.

Martinez moved for judgment on the verdict. The trial court granted Martinez’s motion

and entered a take-nothing judgment for Villa. This appeal followed.

                       II. FACTUAL SUFFICIENCY OF ZERO DAMAGES

       On appeal, Villa argues that the trial court erred by entering a take-nothing

judgment because the facts of her injuries were uncontroverted at trial. We construe this

argument as a challenge to the factual sufficiency of the evidence.

A. Standard of Review and Applicable Law

       “In reviewing a factual-sufficiency challenge to a jury finding on an issue on which

the appellant had the burden of proof, the appellant must show that the adverse finding

is against the great weight and preponderance of the evidence.” Editorial Caballero, S.A.

de C.V. v. Playboy Enterprises, Inc., 359 S.W.3d 318, 329 (Tex. App.—Corpus Christi

2012, pet. denied) (citing Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001)).

Appellate courts must weigh all the evidence, including evidence that supports the

judgment and evidence that undermines the judgment. See Editorial Caballero, 359

S.W.3d at 329. The jury is the “sole judge” of the credibility of the witnesses; the jury may

freely choose to believe one witness over another. See id. We will only set aside the

verdict if the evidence is so weak or if the judgment is so against the great weight and

preponderance of the evidence as to make the verdict “clearly wrong and unjust.” Dow,

46 S.W.3d at 242; see Blevins v. State Farm Mut. Auto. Ins. Co., No. 02-17-00276-CV,

2018 WL 5993445, at *8 (Tex. App.—Fort Worth Nov. 15, 2018, no pet. h.) (“The amount

of evidence needed to show that factually sufficient evidence supports a jury finding is ‘far

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less’ than the amount needed to conclude that a finding is so contrary to the overwhelming

weight of the evidence as to be clearly wrong and unjust.”).

      Whether a finding of zero damages is against the great weight and preponderance

of the evidence can be influenced by the nature of the evidence itself:

      If the plaintiff has objective symptoms of injury, i.e., a cut or laceration of his
      body as in this instance, and there is readily available testimony which the
      defendant could offer to refute such fact, plaintiff's evidence cannot be
      disregarded by the jury when the defendant fails to refute it. On the other
      hand, if plaintiff's complaints are subjective in nature, i.e., headaches, which
      the defendant may not readily dispute, then the negative answer of the jury
      to the damage issue will not be disturbed when it rests upon the testimony
      of plaintiff alone.

Blount v. Earhart, 657 S.W.2d 898, 901 (Tex. App.—Tyler 1983, no writ); see Rumzek v.

Lucchesi, 543 S.W.3d 327, 333 (Tex. App.—El Paso 2017, pet. denied) (“[I]f the plaintiff’s

complaints are subjective in nature and, therefore, incapable of direct proof, the jury may

award zero damages.”); In re State Farm Mut. Auto. Ins. Co., 483 S.W.3d 249, 263 (Tex.

App.—Fort Worth 2016, no pet.) (“When there is uncontroverted, objective evidence of

an injury and the causation of the injury has been established, appellate courts are more

likely to overturn jury findings of no damages for past pain and mental anguish.”); Horton

v. Denny’s Inc., 128 S.W.3d 256, 260 (Tex. App.—Tyler 2003, pet. denied) (“When the

fact of injury and resulting damages chiefly depend upon subjective evidence, appellate

courts are reluctant to hold the non-findings as against the great weight and

preponderance of the evidence.”); Hammett v. Zimmerman, 804 S.W.2d 663, 664–65

(Tex. App.—Fort Worth 1991, no writ) (citing Russell v. Hankerson, 771 S.W.2d 650, 653

(Tex. App.—Corpus Christi 1989, writ denied)); see also Blevins, 2018 WL 5993445, at

*8 (observing that when the jury awards zero damages, “we simply weigh all of the

evidence to determine whether a particular damages finding bucks the great weight and
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preponderance of the evidence”); Schaffer v. Nationwide Mut. Ins. Co., No. 13-11-00503-

CV, 2013 WL 2146833, at *2 (Tex. App.—Corpus Christi May 16, 2013, pet. denied).

B. Discussion

         Villa asserts that it was error for the trial court to sign a take-nothing judgment

when she established her damages via uncontroverted evidence. However, it was her

burden to show that the judgment is against the great weight and preponderance of the

evidence. See Editorial Caballero, 359 S.W.3d at 329. We conclude that the jury’s zero-

damage finding was not against the great weight and preponderance of the evidence.

See Horton, 128 S.W.3d at 261–62.

         Villa’s injuries in the present case are mostly subjective in nature: numbness,

tingling, headaches, asthma attacks, and burning sensations. See Russell, 771 S.W.2d

at 652; Blount, 657 S.W.2d at 901. During trial, Martinez cross-examined Villa and Dr.

Caquias regarding the medical treatment Villa received and the causation of her injuries.

The jury heard evidence controverting the existence, cause, and severity of Villa’s

injuries. For example, the following exchange occurred between Martinez’s counsel and

Villa:

         [Counsel]:   Obviously you went to Valley Baptist after this accident,
                      correct?

         [Villa]:     Yes.

         [Counsel]:   They took some X-rays of your neck and your lower back,
                      correct?

         [Villa]:     I’m guessing, yes. It’s been a while.

         [Counsel]:   Do you remember them doing tests on you, CT scan, and X-
                      rays?

         [Villa]:     Yes, sir.
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         [Counsel]:   Those tests on your neck and back, you understand they were
                      normal, correct?

         [Villa]:     It should be on file, but they told me to go back to the doctor
                      because I was still in pain.

         [Counsel]:   Yeah. If you continue in pain they told you to go to your family
                      doctor, is what they recommended, correct?

         [Villa]:     Yes, sir.

Villa then testified that she went to Melton Chiropractic because of continued numbness

and pain. But she acknowledged that on August 3, 2009, Melton Chiropractic claimed

she reached “maximum medical improvement” and that they did not believe she needed

any further medical treatment.

         The jury heard evidence that Dr. Caquias did not look at the MRI films himself;

instead, he had to rely on the word of a radiologist because Dr. Caquias had trouble

seeing the MRI films on his own computer. Dr. Caquias testified that the bulges described

in the MRI report were only 0.5 millimeters and that nothing in the record indicated that

Villa complained of any shooting pain in her leg, which suggested that the bulges were

small enough as to not be pinching any nerves. He admitted that because the bulges

were small, Villa did not have any compression on the spinal cord, which was a “good

sign.”    According to Dr. Caquias, the radiologist’s notation of “not impinging upon

neurostructures” means that the bulges were not touching anything that would cause Villa

any symptoms. Dr. Caquias also confirmed that the radiologist mentioned a Schmorl’s

node formation in his thoracic MRI report. Martinez’s counsel confronted Dr. Caquias

about the Schmorl’s node:

         [Counsel]:   Okay. Now, my question—that doesn’t really answer my
                      question. My question is whether those nodes are a
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                      manifestation of Scheuermann’s disease. I guess you don’t
                      know?

       [Caquias]:     It’s only a singular one. The only thing I can say is it’s
                      attributable to the accident because it’s incurring in the center
                      with slight protrusion of the disk which signifies there may
                      have been a pressure problem caused there.

       [Counsel]:     May have been?

       [Caquias]:     May have been.

       [Counsel]:     But we don’t know, correct?

       [Caquias]:     Well, for certain, you wouldn’t, but suggestive with all the other
                      findings—

Shortly after this testimony, Dr. Caquias also confirmed that Villa suffers from facet

arthrosis, which is a degenerative disease of the spine.

       Villa compares her case to Russell, 771 S.W.2d at 652. Russell also involved a

car collision in which both the plaintiff and defendant were found to be 50% negligent.

The court in Russell concluded that the jury was “not at liberty to disregard the evidence

that an injury has occurred and award no damages.” Id. at 653. However, of critical

importance was the fact that the plaintiff’s injuries in Russell were more objective in

nature, causation was established, and the evidence was truly “uncontroverted.” Id. at

652. Three medical experts confirmed that the plaintiff’s foot in Russell was severely

swollen; they also noticed severe discoloration of the foot. See Id. at 653. Furthermore,

“none of the evidence adduced at trial suggested that appellant’s ailment was caused by

anything other than the collision in question.” Id. at 652. No testimony or evidence

suggested the plaintiff’s injury in Russell was a pre-existing condition. See id. Ultimately,

the court in Russell found no evidence controverting the fact that the plaintiff suffered

injuries specifically caused by the collision; therefore, taking all of that into consideration,
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it was against the great weight and preponderance of the evidence to award zero

damages. Id. at 653.

       In contrast, Villa did not present uncontroverted evidence of an objective symptom

of injury, nor did she satisfactorily establish causation. Rather, Martinez presented,

through cross-examination of Villa and Dr. Caquias, evidence regarding the nature,

cause, and severity of Villa’s injuries.     Most of the injuries Villa complains of are

subjective, including the tingling and burning sensations. The bulges on Villa’s spine are

more objective in nature, but it was not definitively established at trial that the collision

caused the bulges. Villa’s expert even testified that he was not absolutely certain the

accident caused the spinal bulges. Furthermore, Martinez presented evidence that Villa

suffered no long-term damages attributable to the collision, that her MRI films appeared

“normal,” and that the bulges along her spine could have formed due to medical

conditions, such as Scheuermann’s disease, which are completely unrelated to the car

collision. In other words, Villa’s injuries were mostly subjective, and she did not establish

causation definitively concerning her objective injury. See Horton, 128 S.W.3d at 260;

Russell, 771 S.W.2d at 652. The record clearly indicates that there were questions raised

as to the existence, cause, and degree of Villa’s injuries.

       Once Martinez presented some evidence challenging the cause of and extent of

Villa’s subjective injuries, it was the jury’s job to weigh the evidence and resolve any

inconsistencies in the evidence. See Editorial Caballero, 359 S.W.3d at 329. The

evidence needed to support the jury’s finding as factually sufficient is far less than the

amount of evidence needed to conclude that the jury’s finding was clearly wrong.

Therefore, given the record and evidence adduced, we cannot say that the jury’s findings

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in this case are so against the great weight and preponderance of the evidence as to be

clearly wrong or shock the conscience. See Rumzek, 543 S.W.3d at 333; In re State

Farm Mut. Auto. Ins. Co., 483 S.W.3d at 263; Horton, 128 S.W.3d at 260; see also

Blevins, 2018 WL 5993445, at *8. The trial court did not err in entering a take-nothing

judgment. We overrule Villa’s sole issue.

                                    III. CONCLUSION

      We affirm the trial court’s judgment.

                                                            NORA L. LONGORIA
                                                            Justice


Delivered and filed the
16th day of May, 2019.




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