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                                 MEMORANDUM OPINION

                                         No. 04-08-00681-CV

                                        WEEKS Marine, Inc.,
                                           Appellant

                                                   v.

                                     Edgar Eduardo BARRERA,
                                             Appellee

                      From the 381st Judicial District Court, Starr County, Texas
                                     Trial Court No. DC-04-137
                             Honorable Jose Luis Garza, Judge Presiding

Opinion by:       Steven C. Hilbig, Justice

Sitting:          Catherine Stone, Chief Justice
                  Phylis J. Speedlin, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: January 27, 2010

AFFIRMED IN PART, REVERSED AND REMANDED IN PART

           Weeks Marine, Inc. appeals the judgment in favor of Edgar Eduardo Barrera for $842,100.00

in tort damages, $100,000.00 in cure, $100,000.00 in attorneys’ fees, and $17,186.87 in costs.

Weeks contends: (1) the trial court erred in rendering judgment for both the tort award for medical

expenses and the cure award because it results in a double recovery for the same damages; (2) the

evidence is legally and factually insufficient to support the jury award of $100,000.00 in attorney’s
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fees; and (3) the trial court erred in allowing testimony from undisclosed witnesses, denying a

mistrial, and excluding original photographs.

                           FACTUAL AND PROCEDURAL BACKGROUND

       On September 11, 2003, Barrera was working on a vessel owned by Weeks when he tripped

and fell. Barrera sustained a twisting, rotation injury to his right knee. As a result, Barrera

underwent two surgeries for knee repair, and his doctors recommend a third surgery for a knee

replacement. Barrera filed suit alleging a tort claim, an unseaworthiness claim, and seeking a

seaman’s maintenance and cure award.

       Dr. Burliner testified Barrera’s past medical expenses were $117,933.10. He also testified

that the future knee replacement surgery would cost between $40,000.00 and $50,000.00.

Additionally, Dr. Burliner testified that medical expenses up to the date of the knee replacement,

which would be necessary in seven to ten years, would be approximately $2,500.00 a year. Finally,

Dr. Burliner testified Barrera would require medical care after the surgery at a cost of approximately

$2,000.00 a year, but he did not provide a date when Barrera would no longer need medical care for

his knee.

       The jury found Weeks’s negligence proximately caused Barrera’s injuries. The jury also

found the unseaworthy condition of the vessel caused Barrera’s same injuries. The jury awarded

personal injury damages, including $53,000.00 for past medical expenses and $60,000.00 for future

medical expenses under the negligence claim.           The jury also found Weeks arbitrarily and

capriciously denied Barrera his seaman’s maintenance and cure claim.              The jury awarded

$100,000.00 for cure and nothing for maintenance. The trial court rendered a judgment for Barrera

awarding both past and future medical expenses and cure. The judgment also awarded Barrera



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$100,000.00 for attorney’s fees and $17,186.87 for court costs, which included trial transcript copies

and interpreter’s fees.

                                            DISCUSSION

                                   Issue One-Double Recovery

       Weeks contends the trial court erred in rendering judgment for both cure and past and future

medical expenses because it results in a double recovery of the same damages. A cure award covers

the payment of therapeutic, medical, and hospital expenses not otherwise provided to the seaman

until the point of “maximum cure.” Maritime Overseas Corp. v. Thomas, 681 S.W.2d 160, 161-62

(Tex. App.— Houston [14th Dist.] 1984, no writ). A tort claim provides the same medical expenses

as an element of damages. Weeks Marine, Inc. v. Salinas, 225 S.W.3d 311, 322 (Tex. App.—San

Antonio 2007, pet. dism’d). A “double recovery” occurs when a plaintiff obtains more than one

recovery for the same injury or loss. Waite Hill Servs, Inc. v. World Class Metal Works, Inc., 959

S.W.2d 182, 184 (Tex. 1998); Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 7 (Tex. 1991). To

avoid a double recovery, a party must make an election of remedies. Salinas, 225 S.W.3d at 322.

“An election of remedies is the choosing of one or more inconsistent but coexistent modes of

procedure and relief allowed by law on the same state of facts.” Id. An injured seaman has two

separate lines of recovery: tort damages, and maintenance and cure. Id. Cure requires the employer

pay a seaman’s medical expenses and cannot duplicate the tort damages for medical expenses. Id.

A judgment may exclude medical expenses under the tort recovery and separately award cure. Id.

       Barrera acknowledges that a cure award cannot duplicate tort damages for past and future

medical expenses and that a cure award for therapeutic, medical, and hospital expenses is the same

as past and future medical expenses under the negligence claim. See Salinas, 225 S.W.3d at 322;



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Maritime Overseas, 681 S.W.2d at 161-62. Barrera argues, however, that the jury’s award for

medical expenses and cure are not the same medical expenses for the same time period; rather, they

are different expenses for the same time period. We disagree and hold the past and future medical

expenses and cure award are for the same damages for the same time period for Barrera’s injuries

caused by his accident on September 11, 2003.

       It is clear from the record that Barrera suffered one injury and underwent one course of

medical treatment for the injuries he suffered on September11, 2003. The jury was asked to award

money under the tort claim to fairly and reasonably compensate Barrera for his past and future

medical expenses that resulted from the incident that occurred on September 11, 2003. Similarly,

the jury was asked in a different question to award a sum of money that would fairly and reasonably

compensate Barrera for cure for the injuries he suffered on September 11, 2003. In each of the

damage questions, the jury was asked to fully compensate Barrera for the injuries caused by his

accident on September 11, 2003.

       Barrera argues the jury divided the figures for medical expenses provided by Dr. Burliner

between the medical expenses for the negligence claim and the cure award. There is no evidence

to support dividing the medical expenses between the two lines of recovery. Dr. Burliner testified

as to the past and future medical expenses and did not separate the figures in such a way as to

support Barrera’s argument. Barrera’s assertion that the jury split the total amount of medical

expenses between the two awards is speculation and is not supported by any evidence.

       In light of the evidence and the manner the case was submitted, there is no reasonable basis

to conclude that the past and future medical expenses and the cure awards are anything other than




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a double recovery for the same damages. We reverse and remand for Barrera to elect between

recovery under the negligence claim for past and future medical expenses or the cure award.

                                         Issue Two-Attorney’s Fees

        Weeks contends the evidence is legally and factually insufficient to support the $100,000.00

attorney’s fee award.1 To determine whether there is legally sufficient evidence to support a verdict

we view the evidence in a light most favorable to a finding and indulge every reasonable inference

to support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We credit favorable

evidence if a reasonable fact-finder could, and disregard contrary evidence unless a reasonable fact-

finder could not. Id. If there is more than a scintilla of evidence to support the finding, the legal

sufficiency challenge fails. Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960

S.W.2d 41, 48 (Tex. 1998).

        The factors governing the assessment of attorney’s fees are: (1) the time and labor involved,

the novelty and difficulty of the questions involved, and the skill required to perform the legal

services properly; (2) the likelihood that the acceptance of the particular employment will preclude

other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal

services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the

client or the circumstances; (6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and

(8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the




        1
         … W e need not address the factual sufficiency issue because we dispose of the attorney’s fees issue on legal
sufficiency of the evidence. Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. and Research Corp.,No.07-0818,
2009 W L 3494978 at *15 (Tex. Oct. 30, 2009); Guevara v. Ferrer, 247 S.W .3d 662, 669-70 (Tex. 2007).

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legal services have been rendered. Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812,

818-19 (Tex. 1997).

        There is scant evidence on attorney’s fees. At the end of the first week of a two week trial,

one of Barrera’s attorneys, Peter Taaffe, testified on attorney’s fees in narrative form. Taaffe told

the jury there were no billing records because there was a contingent fee agreement with Barrera.

Taaffe explained that Barrera was only seeking his attorney’s fees for pursuing the maintenance and

cure claim and not the other claims. First, Taaffe testified he had reviewed the file and estimated

the legal fees for the maintenance and cure claim as $8000.00 (40 hours at $200 per hour). Then at

the end of his narrative testimony, another of Barrera’s counsel asked Taaffe about the number of

hours the attorneys worked on the case. Taaffe explained the attorneys had worked in excess of 300

hours, which included 160 hours in the first week of trial. He added, however, they were asking for

a smaller portion of their fees because the maintenance and cure was a smaller portion of the case.

Finally, Taaffe stated in his testimony that he considered each of the Andersen factors, but he did not

testify as to the factors in relation to this case.

        Although Taaffe’s testimony is some evidence to support an award of attorney’s fees, it is

not legally sufficient evidence to support $100,000.00 in attorney’s fees. When there is some

evidence to support an award of attorney’s fees, but not sufficient evidence to support the amount

awarded, we remand the issue rather than render judgment. See Akin, Gump, Strauss, Hauer & Feld,

L.L.P. v. Nat’l Dev. and Research Corp., No. 07-0818, 2009 WL 3494978 at *15 (Tex. Oct 30,

2009); Guevara v. Ferrer, 247 S.W.3d 662, 669-70 (Tex. 2007). Accordingly, we reverse and

remand to the trial court for a determination of the proper amount of attorney’s fees.




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                          Issue Three-Error in Admission of Testimony

       Weeks next complains the trial court abused its discretion by allowing Juan Isaac Gonzalez,

Juan Garza and Narciso Salinas, Jr. to testify because they were not properly identified in discovery

responses as witnesses with knowledge of relevant facts. To obtain reversal of a judgment based

upon the improper admission of evidence, the appellant must show the trial court committed error,

and the error was reasonably calculated to cause and probably caused the rendition of an improper

judgment. TEX . R. APP . P. 44.1; Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.

1989). Error based on the admission of evidence is generally not reversible unless the appellant can

“demonstrate that the judgment turns on the particular evidence excluded or admitted.” Interstate

Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex. 2001).

       We need not address whether the three witnesses were properly disclosed because even if

they were not, Weeks failed to demonstrate reversible error. Weeks does not explain how the case

turned on the three witnesses’ testimony. Weeks provided no analysis of the testimony in relation

to the other evidence on liability issues. Weeks did not establish that “but for” the three lay

witnesses’ testimony the jury would not have found in Barrera’s favor. See Interstate Northborough

P’ship, 66 S.W.3d at 220; Doncaster v. Hernaiz, 161 S.W.3d 594, 601 (Tex. App.–San Antonio

2005, no pet.). Rather, Weeks merely asserts that “[t]he testimony of the three witnesses was

controlling on material, crucial liability issues in this case, specifically those by Barrera of alleged

bad weather conditions, alleged poor maintenance, bad work conditions, lack of paint, lack of

supervision, and failure to train, among others.” Weeks further states, “[t]he evidence was directed

at each of the allegations in [Barrera’s] pleadings, and directed at defeating each of Weeks’




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defenses.” These mere assertions do not demonstrate the admission of the three witnesses’ testimony

led to the rendition of an improper judgment.

                    Issues Four and Five-Court Costs and Interpreter’s Fees

       Under issues four and five, Weeks claims the trial court erred in including Barrera’s costs

for daily trial transcripts and the interpreter’s fees in the award of court costs. The assessment of

costs will be reversed on appeal only if the trial court abused its discretion. Crescendo Inv., Inc. v.

Brice, 61 S.W.3d 465, 480-481 (Tex. App.—San Antonio 2001, pet. denied). A trial court abuses

its discretion by acting arbitrarily, unreasonably, or without consideration of guiding principles.

Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003).

       Rule 131 of the Texas Rules of Civil Procedure states, “The successful party to a suit shall

recover of his adversary all costs incurred therein, except where otherwise provided.” TEX . R. CIV .

PROC. 131. A court may include the following items in awarding costs:

               (1) fees of the clerk and service fees due the county;
               (2) fees of the court reporter for the original of stenographic
               transcripts necessarily obtained for use in the suit;
               (3) masters, interpreters, and guardians ad litem appointed pursuant
               to these rules and state statutes; and
               (4) such other costs and fees as may be permitted by these rules and
               state statutes.

TEX . CIV . PRAC. & REM . CODE ANN . § 31.007(b) (Vernon 2008). Also recoverable are deposition

costs and filing, court reporter, transcript, subpoena and citation fees. Brice, 61 S.W.3d at 480.

Generally, costs that are necessary to the conduct of a trial are recoverable. Fasken Land &

Minerals, Ltd. v. Occidental Permian Ltd., 225 S.W.3d 577, 596-97 (Tex. App.—El Paso 2005, pet.

denied); Operation Rescue-Nat’l v. Planned Parenthood of Houston & S.E. Tex., Inc., 937 S.W.2d



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60, 88 (Tex. App.—Houston [14th Dist.] 1996), aff’d as modified on other grounds, 975 S.W.2d 546

(Tex. 1998).

       In Brice, the trial court awarded appellees their costs for certified copies of depositions and

trial transcripts. Brice, 61 S.W.3d at 480-81. This court stated, “transcripts ‘necessarily obtained

for use in the suit’ seems to obviously include trial testimony used to question witnesses and prepare

for argument at trial.” Id. We found no abuse of discretion because the appellees in Brice were not

recovering for “making copies” as prohibited by Rule 140. Id. at 481. Likewise, the trial court in

this case awarded Barrera the fees necessary to obtain a copy of the original transcripts of trial

proceedings ordered by Weeks for use at trial. The trial court did not abuse its discretion by

including court reporter’s charges for copies of trial testimony used during trial.

       Further, interpreter’s fees are clearly recoverable court costs when the interpreter is appointed

pursuant to the rules and state statutes. TEX . CIV . PRAC. & REM . CODE ANN . § 31.007(b) (Vernon

2008). Texas Rule of Civil Procedure 183 provides that a court may appoint an interpreter of its own

selection and fix the interpreter’s reasonable compensation. Weeks contends the interpreter was not

appointed pursuant to the rules, and argues the fees therefore are not recoverable court costs.

Although there was no formal order appointing the interpreter prior to the use of her services, the

record is clear the trial judge questioned the interpreter to determine if she was certified before

swearing her in. After the trial the court signed an order that provided “the Court finds that it

effectively appointed Ms. Aragon as an English-Spanish interpreter for trial, that defense counsel

utilized her services and did not object to her appointment and services at trial.” The order further

provided that if the interpreter’s fees are not proper under § 31.007(b) of the Civil Practice and

Remedies Code, then they are recoverable pursuant to Rule 141. See Tex. R. CIV . PROC. 141 (court


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may award costs for good cause). The trial court found good cause for the award because the

interpreter’s services were instrumental at trial and utilized by Weeks without objection.

       Accordingly, the trial court did not abuse its discretion in its assessment of costs.

                                         Issue Six-Mistrial

       Weeks contends Barrera’s counsel committed numerous instances of misconduct by eliciting

testimony in violation of the motion in limine rulings which prohibited evidence of hearsay and prior

accidents or injuries. Weeks asserts the trial judge erred in denying its motion for mistrial.

       A motion in limine is a procedural device that provides a party an opportunity to know in

advance the evidentiary rulings the court will make during trial before the evidence is presented.

Weidner v. Sanchez, 14 S.W.3d 353, 363 (Tex. App.—Houston [14th Dist.] 2000, no pet.). By

obtaining pretrial rulings, the opposing party is prevented from asking prejudicial questions in front

of the jury without first asking the trial court’s permission. Id. A party complaining of a limine

violation must object immediately after the information it sought to be excluded is revealed. Id. at

364-65. The objecting party must also request the court to instruct the jury to disregard the evidence.

State Bar of Tex. v. Evans, 774 S.W.2d 656, 658 n.6 (Tex. 1989). Error is waived if there is no

timely objection and request for an instruction to disregard, unless the error is incurable. Id.

       We review the denial of a motion for mistrial under an abuse of discretion standard. See

Champion Int’l Corp. v. Twelfth Court of Appeals, 762 S.W2d 898, 899 (Tex. 1988). When the

basis for the requested mistrial is a violation of a motion in limine, we review the violations to

determine if the violations were curable by an instruction to the jury to disregard the statement. See

Lohmann v. Lohmann, 62 S.W.3d 875, 881 (Tex. App.—El Paso 2001, no pet.); Weidner, 14 S.W.3d

at 363; Fort Worth Hotel Ltd. P’ship v. Enserch Corp., 977 S.W.2d 746, 757 (Tex. App.—Fort

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Worth 1998, no pet.). Generally, an instruction to disregard is presumed sufficient to cure any error;

however, in rare instances a violation is incurable if the instruction to disregard would not eliminate

the danger of unfair prejudice or if the violation was calculated to inflame the minds of the jury. See

Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839-40 (Tex. 1979); Lohmann, 62 S.W.3d at 881.

        Weeks first complains Barrera’s counsel violated limine rulings by eliciting testimony from

two witnesses regarding prior accidents on Weeks’s vessels that did not involve Barrera. Weeks did

not timely object or request an instruction to disregard; therefore, any violation of the limine ruling

was waived unless Weeks can show that an instruction to disregard could not have cured the

prejudice. “Unfair prejudice” is “an undue tendency to suggest [a] decision on an improper basis,

commonly, though not necessarily, an emotional one.” Turner v. PV Int’l Corp., 765 S.W.2d 455,

471 (Tex. App.—Dallas 1988)(quoting FED . R. EVID . 403 advisory committee’s note), writ denied,

778 S.W.2d 865 (Tex. 1989)(per curiam). Weeks argues the two witnesses’ testimony bolstered

Barrera’s version on how the accident occurred and “impugned” Weeks’s integrity. However,

Weeks fails to explain how the testimony unfairly prejudiced its case or was calculated to inflame

the jury.

        Weeks also complains Barrera’s counsel violated the limine rulings by eliciting hearsay from

a witness regarding telephone conversations. However, the questions complained of did not call for

hearsay, nor did the witness respond with hearsay testimony.

        Even if the trial court erred, Weeks is required to demonstrate reversible error. Error is

reversible only if it probably caused the rendition of an improper judgment. TEX . R. APP . P.

44.1(a)(1). Weeks failed to demonstrate through an analysis of the evidence that error in the




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admission of testimony of other accidents or hearsay led to the rendition of an improper judgment.

Weeks has not shown reversible error.

                             Issue Seven-Exclusion of Photographs

       Weeks asserts the trial court erred in granting Barrera’s objection to the introduction of

several original photographs with dates marked on the back. Barrera argued in the trial court only

copies of the photographs that did not show the dates on the photos had been produced. Weeks

responded that the originals with the dates should be admitted because Barrera implied to the jury

that the copies of the photographs were not valid. The trial court allowed the originals to be

introduced with the dates redacted.

       As discussed above, to obtain reversal of a judgment based on the exclusion of evidence, the

trial court must have committed error, and the error must have been reasonably calculated to cause

and probably did cause the rendition of an improper judgment. TEX . R. APP . P. 44.1; Gee, 765

S.W.2d at 396. This standard requires the appellant demonstrate that the whole case turns on the

particular evidence admitted or excluded. Interstate Northborough P’ship, 66 S.W.3d at 220.

Weeks does not explain on what issue the dates on the photographs were relevant. Weeks does not

demonstrate how the exclusion of the dates on the back of the photographs led to the rendition of an

improper judgment.

                                          CONCLUSION

       We reverse the judgment in part and remand for further proceedings. Because we hold the

judgment provides an impermissible double recovery for medical expenses and cure, we remand for

Barrera to elect between the two damage awards. See Salinas, 225 S.W.3d at 322. We also reverse

and remand the attorney’s fees award because there is some evidence of fees but there is not

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sufficient evidence to support $100,000.00 in fees. The award is remanded for a determination of

the amount of attorney’s fees if Barrera elects the cure award and waives past and future medical

expenses under the negligence claim. We hold the trial court did not abuse its discretion in its award

of costs. Additionally, we hold the introduction of testimony from three liability witnesses did not

lead to the rendition of an improper judgment. Finally, the trial court did not abuse its discretion in

denying the mistrial or by excluding the original photographs with the dates shown on the back.




                                                         Steven C. Hilbig, Justice




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