                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                    No. 07-12-00168-CV


                            OFELIA D. GARCIA, APPELLANT

                                             V.

           CARLOS ALFREDO CERDA AND ELISEO CERDA, JR., APPELLEES

                           On Appeal from the 96th District Court
                                   Tarrant County, Texas
             Trial Court No. 096-246065-10, Honorable R. H. Wallace, Presiding

                                       July 15, 2013

                             MEMORANDUM OPINION
                   Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


       Appellant, Ofelia D. Garcia, appeals the trial court’s granting of a judgment in

favor of Eliseo Cerda, Jr.1 for medical bills incurred by Cerda while he was a minor. We

will reverse and remand with instructions.




       1
         Eliseo Cerda, Jr.’s father, Eliseo Cerda, Sr., was not a party to this action at the
time of trial. Therefore, all references to “Cerda” will refer to Eliseo Cerda, Jr.
                            Factual & Procedural Background2


        Initially, we note that Garcia is not contesting the sufficiency of the evidence and,

therefore, we will address only the facts necessary for the disposition of the issues

raised.


        Garcia and Cerda were involved in a vehicle accident on February 14, 2009.

Cerda was a passenger in a car driven by his brother, Carlos Alfredo Cerda. At the time

of the accident, Cerda was 16 years of age.            Cerda received medical care, via

chiropractic treatment, through April 15, 2009. Cerda was a minor the entire time he

was receiving medical treatment.


        During the trial, Garcia advised the trial court that she was objecting to proof of

the cost of medical treatment received by Cerda because he was a minor at the time of

treatment.    In furtherance of that trial position, Garcia objected to the exhibits and

testimony tending to prove what medical treatment was received, and, when her

objection was overruled, obtained a running objection to that evidence. At the close of

evidence, the trial court presented trial counsel with the court’s proposed charge to the

jury.     The proposed jury question concerning Cerda’s damages inquired about

“Reasonable expenses of necessary medical care incurred in the past.”                 Garcia

objected to the submission of the issue contending that all of those amounts were

        2
        Pursuant to the Texas Supreme Court’s docket equalization efforts, this case
was transferred to this Court from the Second Court of Appeals. See TEX. GOV’T CODE
ANN. § 73.001 (West 2013). That being so, we must decide this case “in accordance
with the precedent of the transferor court under principles of stare decisis” if our
decision otherwise would have been inconsistent with the precedent of the transferor
court. TEX. R. APP. P. 41.3; Phillips v. Phillips, 296 S.W.3d 656, 672 (Tex.App.—El
Paso 2009, pet. denied).


                                              2
incurred when Cerda was a minor, and, as such, Cerda did not have a right to recover

those damages. The trial court overruled the objection.


       The jury subsequently returned their answers to the jury questions and awarded

for Cerda $400 for physical pain and mental suffering sustained in the past. The jury

also awarded Cerda $4,708 for reasonable expenses of necessary medical care

incurred in the past. Garcia filed a motion requesting the trial court to disregard the

jury’s answer to question 4(e), regarding the reasonable expenses of necessary medical

care incurred in the past.      The trial court overruled the motion to disregard by

subsequently entering judgment in favor of Cerda as supported by the jury’s answers.

This appeal followed.3


       Garcia presents two issues on appeal.         First, Garcia contends that the trial

court’s submission of the jury question regarding reasonable and necessary medical

care Cerda incurred in the past was reversible error. Second, Garcia contends that the

trial court committed reversible error by failing to disregard the jury’s answer regarding

the reasonable and necessary medical care incurred in the past. Agreeing with Garcia’s

first issue, we reverse and remand this matter to the trial court.


                                          Analysis


       Garcia’s first issue concerns the court’s charge and the jury question involving

Cerda’s medical expenses in the past. Garcia insists the question should not have




       3
       Judgment was also entered in favor of Carlos Alfredo Cerda. Garcia has not
appealed that portion of the judgment.


                                             3
been submitted to the jury.4 We review claimed error in the court's charge under an

abuse of discretion standard. See Tex. Dep't of Human Servs. v. E.B., 802 S.W.2d 647,

649 (Tex. 1990). A trial court abuses its discretion if it acts in an arbitrary or

unreasonable manner, or if it acts without reference to any guiding rules or principles.

See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). A

trial court's clear failure to analyze or apply the law correctly constitutes an abuse of

discretion. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding);

Cayton v. Moore, 224 S.W.3d 440, 445 (Tex.App.--Dallas 2007, no pet.).


       Texas law has long held that the cause of action for recovery of reasonable and

necessary medical expenses incurred by a minor belongs to the minor’s parents. See

Sax v. Votteiler, 648 S.W.2d 661, 666 (Tex. 1983) (citing Tex. & P. Ry. Co. v. Morin, 66

Tex. 225, 18 S.W. 503 (1886)). The Second Court of Appeals followed this holding in

Morrell v. Finke, 184 S.W.3d 257, 290-91 (Tex.App.—Fort Worth 2005, pet. denied). A

child may, however, recover damages for pain and suffering after he reaches the age of

majority. Id. at 290.


       The record before this Court clearly demonstrates that Cerda was a minor at the

time of the accident. Further, the record demonstrates that all of the medical treatment

he received in connection with the accident was rendered while he was a minor. Under

these facts, the trial court acted without reference to any guiding rules or principles

when it overruled Garcia’s objection to the jury question concerning the reasonable and

necessary medical expenses incurred by Cerda. See Downer, 701 S.W.2d at 241-42.

This failure of the trial court to analyze and apply the law correctly was an abuse of its

       4
           Cerda, did not favor us with a response brief.

                                               4
discretion. See Walker, 827 S.W.2d at 840; Cayton, 224 S.W.3d at 445. Accordingly,

we sustain Garcia’s first issue.


       Additionally, we note that Garcia has not attacked the award to Cerda of $400 for

pain and suffering sustained in the past. Such an award is permissible. See Morrell,

184 S.W.3d at 290. Accordingly, that portion of this judgment is affirmed. Finally, our

consideration of Garcia’s second issue is pretermitted as a result of our holding herein.

See TEX. R. APP. P. 47.1.


                                       Conclusion


       We reverse the judgment of the trial court and remand this cause to the trial court

with instructions to enter a judgment in favor of Cerda for pain and suffering sustained in

the past along with pre-judgment interest, in conformity with this opinion.



                                                 Mackey K. Hancock
                                                     Justice




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