                                        In The
                                   Court of Appeals
                          Seventh District of Texas at Amarillo
                                    ________________________

                                         No. 07-16-00388-CV
                                     ________________________


                                  ELIAS BALDERAS, APPELLANT

                                                     V.

           LINDSEY FULLINGIM AND MATTHEW MONDRAGON, APPELLEES



                               On Appeal from the 237th District Court
                                       Lubbock County, Texas
                    Trial Court No. 2014-512,625; Honorable Les Hatch, Presiding


                                                July 26, 2018

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

       Appellant, Elias Balderas, appeals a judgment rendered in his favor following a

jury trial of his personal injury claim against Appellee, Lindsey Fullingim, on the issue of

damages.1 By this appeal, Balderas asserts a single issue with two subparts, i.e., the

trial court erred in denying his motion for a new trial because (1) the evidence was


       1   In its verdict, the jury did not attribute any negligence to Appellee, Matthew Mondragon.
factually insufficient to justify the jury’s finding of “zero” damages for past and future

physical impairment and (2) the denial of his motion for new trial was an abuse of

discretion. We affirm the trial court’s judgment.


        BACKGROUND

        In October of 2013, Balderas was a passenger in a company pickup being driven

by Matthew Mondragon when it was struck from behind by Fullingim. 2 In August 2014,

Balderas filed his original petition against Fullingim asserting actions for negligence and

negligence per se, seeking compensation for injuries he allegedly incurred as a result of

that accident. In March 2015, he amended his original petition to assert an action against

Mondragon for negligence.3


        TRIAL

        Balderas’s claims against Fullingim and Mondragon were tried before a jury. The

evidence established that on October 9, 2013, Mondragon was driving an Advanced

Pavement Maintenance, Ltd. company pickup with his stepfather, Balderas, when

Balderas spilled his iced tea on the console and Mondragon’s seat.                     Balderas told

Mondragon to pull over, so they could clean up the tea. Balderas removed his seat belt

as Mondragon slowed down to turn into an alleyway. As Mondragon was making the

turn, Fullingim struck the pickup from behind.


        2Balderas also asserted actions against Stephanie Day for negligent entrustment and the Phoenix
Insurance Company, d/b/a Travelers (Travelers), for an uninsured/underinsured motorist claim. In April
2016, the trial court severed Balderas’s claims against Day and Travelers from his other claims.

         3 In addition to Matthew Mondragon, he asserted actions under the theory of respondeat superior

against Advanced Pavement Maintenance, Ltd., Lakeside Paving Materials, LLC, Individually and as the
General Partner of Advanced Pavement Maintenance, Ltd., and Advanced Pavement of Lubbock, LLC
(collectively referred to as Advanced Pavement). In March 2016, the trial court granted summary judgment
in favor of Advanced Pavement.

                                                   2
       Balderas testified that as a result of the collision he hit the dashboard and began

to fade in and out of consciousness. When he opened the door to exit the pickup, he

testified that he fell to the ground where he remained until the EMS loaded him into the

ambulance. Somewhat differently, the EMS records show Balderas suffered no loss of

consciousness and was only having minor pain to his neck following the accident. The

records revealed that Balderas was ambulatory upon arrival and that he appeared to be

in no distress. When presented with the EMS records during cross-examination, Balderas

admitted that he was only having minor pain when the EMS arrived at the accident.


       Officer Kevin Russell investigated the accident. His investigation determined that

Balderas complained of some minor injuries, but nothing physical.4 Officer Russell’s

report stated that Fullingim also had a possible injury. Fullingim later testified she had a

sore arm post-accident but did not receive any medical treatment. Mondragon testified

he was not injured and did not receive any treatment.


       Balderas was transported to the Covenant Medical Center ER for examination.

The ER records show he was ambulatory upon arrival. His primary complaint was a slight

pain to his neck. He denied any numbness or a tingling sensation to his hands, feet, or

other areas of the body.


       While he was in the ER, a CT scan of his spine was completed and showed “[n]o

acute fracture or significant misalignment.” He was diagnosed with a cervical sprain and

released after spending approximately two hours at the hospital. He testified, and his



       4  On cross-examination, Balderas agreed with counsel that he probably would not have “slammed”
into the dashboard had he been wearing his seatbelt.

                                                  3
medical records confirmed, that he could have returned to work the following Monday with

no restrictions. The records also contained a statement that he could have returned to

work the next day, Thursday, with no restrictions. He testified that immediately after the

accident, he was unable to go to the restroom by himself for several days. He also

testified that he “limped about,” while requiring support on his right side.5 Balderas never

returned to work at Advanced Pavement.6


            Several days after the accident, Balderas was referred by his attorney to Merritt

Chiropractic for treatment. His chiropractor noted in his records that he had experienced

pain since the day of the accident and had some loss of range of movement. Balderas

testified that during his chiropractic treatment, he returned to the emergency room

because of abdominal pain and rectal bleeding caused by the accident. During cross-

examination, however, Balderas acknowledged his medical records indicated he had

been periodically suffering from abdominal pain and rectal bleeding for three years prior

to the accident. In addition, during his cross-examination, counsel questioned Balderas

on his responses to interrogatories wherein he stated he was treated in Amarillo on

November 30, 2013, for post-traumatic stress disorder symptoms related to the accident.

The medical records for the November visit, however, showed that he was treated

because he ate a bad burrito that caused him stomach issues. In December 2013,




        5   Two weeks later, he testified he went on a fishing trip with his son.

        6 Balderas was terminated from Advanced Pavement the day after the accident. The reason for

his termination was disputed. Evidence indicated he was terminated because he failed to undergo a drug
screen after the accident in accordance with company policy; he had earlier claimed more hours on his time
card than he had worked; he had used his company truck for personal purposes; and he was disliked by
his supervisor because he was a new employee who was also new to Lubbock.


                                                        4
Balderas was released from chiropractic treatment with a good prognosis7 and an

unrelated health issue that needed addressing. In testimony, he admitted the unrelated

health issue was his prior abdominal pain and rectal bleeding.


        Balderas testified that he was hired by Caprock Tire in early 2014. He quit days

later because he was unable to move large tractor tires and mount them on the rear of

the tractors. In April 2014, he was hired by Hills Hot Rods where he was able, with the

help of an assistant, to do engine and transmission swaps without the assistance of a lift.8

In April 2015, Balderas quit this job even though his employer wanted him to stay.9


        Approximately eight months after suit was filed and a year and a half after the

accident, Balderas visited the UMC Physician Clinic in April 2015 complaining of upper

back and neck pain due to a car accident. Balderas’s musculoskeletal examination

showed he had a normal range of motion and normal strength although Balderas

complained of pain when his arms were elevated. His x-rays appeared normal.10 At the




        7 His chiropractor noted that he had the following impairments related to his range of motion at the
conclusion of his treatment: flexion was 45%; right lateral flexion 30%; left lateral flexion was 45%; right
rotation was 65%; and left rotation was 70%.

        8 Balderas testified on direct examination that he sought the job at Hills Hot Rods because he was

having trouble meeting expenses at home. On cross-examination, Balderas agreed with counsel that at
the time he was hired by Hills Hot Rods, he was under a legal obligation to seek employment because he
was on probation.
        9 From August 2015 through trial, he remained employed at Complete Auto Repair doing
diagnostics, brake work, and oil changes.

       10 His CT scan showed straightening of the C-spine with loss of the normal lordotic curvature

suggesting muscle spasm and minimal anterior osteophytic spurring at C4-C5. Otherwise, no fracture was
seen—normal. The read by the radiologist was minimal amount of rotary scoliosis.



                                                     5
time of trial, he was seeing an orthopedic physician and was being treated with physical

therapy.


       Balderas also testified he was suffering from physical limitations due to the

accident. These limitations included an inability to run, shoot a basketball, or throw a

football like he used to. He was also unable to, without pain, drive long distances, wash

and dress himself, walk or sit, stand at work all day, or play games that required a lot of

running or standing.         He also experienced difficulty sleeping at night.            He further

complained that when he was examined by the ER physicians, they would simply give

him pain medication and send him home rather than investigating the root problem of his

physical symptoms.11


       JUDGMENT AND MOTION FOR NEW TRIAL

       In August 2016, the trial court entered its judgment in accordance with a jury verdict

that found Fullingim contributed to the accident or injuries 55%, Balderas contributed

45%, and Mondragon contributed 0%. The jury awarded Balderas $300 for physical pain

sustained in the past, necessary medical expenses totaling $5,277.01,12 and $336 as lost

earnings and earning capacity sustained in the past,13 for a total of $5,913.01. Based

upon Fullingim’s proportionate responsibility of 55%, the trial court ordered her to pay

Balderas the sum of $3,252.16, plus $1,846.06 in costs. The jury did not award Balderas

any damages for the following: physical pain that, in reasonable probability, Balderas


       11   Chamie Balderas, his wife, corroborated most of her husband’s testimony.

        12 The jury’s award of necessary medical expenses was for medical treatment rendered the day of

the accident at Covenant Medical Center and CMG Emergency Department and for services rendered by
University Medical Center Emergency Medical Service.

       13   This award corresponds to wages at Advanced Pavement for approximately two and a half days.

                                                    6
would sustain in the future; physical impairment sustained in the past; physical

impairment that, in reasonable probability, he would sustain in the future; necessary

medical expenses that, in reasonable probability, he would sustain in the future; loss of

earnings and earning capacity that, in reasonable probability, he would incur in the future;

mental anguish sustained in the past; and mental anguish, in reasonable probability, he

would incur in the future.    Balderas later filed a motion for a new trial which was

subsequently denied.


       ISSUE ONE

       Balderas first asserts that the trial court should have granted his motion for a new

trial because the evidence was insufficient for the jury to award “zero” damages for

physical impairment sustained in the past and in the future; i.e., the jury’s verdict was so

against the great weight and preponderance of the evidence as to be manifestly unjust.

In support, he cites his and his wife’s testimony related to restrictions on his physical

activities and a note from his chiropractic examination shortly after the accident that

indicated he had some restriction in his range of movement. He next asserts that the trial

court abused its discretion in denying his motion for a new trial because the evidence was

insufficient to support a verdict of “zero” damages for physical impairment sustained in

the past and in the future. We disagree.


       STANDARDS OF REVIEW

       When a party challenges the factual sufficiency of an adverse finding on an issue

on which it had the burden of proof, it must demonstrate on appeal that the adverse finding

was against the great weight and preponderance of the evidence. Dow Chem. Co. v.

Francis, 46 S.W.3d 237, 242 (Tex. 2001). Under that standard, we review all the evidence

                                             7
in a neutral light and will reverse only if the evidence supporting the finding is so contrary

to the overwhelming weight of the evidence as to make the judgment clearly wrong and

manifestly unjust. Id.


       A jury generally has great discretion in considering evidence on the issue of

damages. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 772 (Tex. 2003)

(“whether to award damages and how much is uniquely within the factfinder’s discretion”).

See also In re State Farm Mut. Auto. Ins. Co., 483 S.W.3d 249, 262-63 (Tex. App.—Fort

Worth 2016, no pet.) (finding that neither the trial court nor the appellate court may

substitute its own judgment for that of the jury). In keeping with the principles that a court

may not substitute its judgment for that of a jury and that the jury is the sole judge of the

weight and credibility of testimony, courts should not conclude that a jury’s failure to award

any damages for physical impairment is against the great weight and preponderance of

the evidence simply because there is objective evidence of an injury. Golden Eagle

Archery, Inc., 116 S.W.3d at 774-75 (collected cases discussed therein). “[A] court should

consider only whether the evidence unique to that category [of damages] is so against

the great weight and preponderance of evidence as to be manifestly unjust, shock the

conscience, or clearly demonstrate bias.” Id. at 775.


       When the jury is presented with conflicting evidence about the existence and

severity of a physical injury and associated pain, the jury can believe all or any part of the

testimony and, conversely, it may disregard all or any part of the testimony of any witness.

Id. at 774-75. That said, a jury award of no damages may be successfully challenged if

there is objective, undisputed testimony of a significant injury and the jury could not have

compensated the injured party in some other category of damages. Id. at 775.

                                              8
       We review a trial court’s denial of a motion for a new trial for an abuse of discretion.

Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009). A trial court abuses

its discretion if it acts in an unreasonable or arbitrary manner or without reference to any

guiding rules or principles. Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004) (citing

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


       ANALYSIS—FACTUAL SUFFICIENCY AND ABUSE OF DISCRETION

       Here, Balderas contends the evidence was insufficient for the jury to award “zero”

damages for physical impairment sustained in the past and in the future. He supports his

claim that the jury’s verdict was so against the great weight and preponderance of the

evidence as to be manifestly unjust by referring us to his and his wife’s subjective

testimony that he suffered a physical impairment and would likely remain physically

impaired in the future as a result of the accident. Although his chiropractor noted that he

had some loss in his range of movement shortly after the accident, he was seen in the

ER shortly thereafter and his musculoskeletal assessment showed only generalized

weakness. There was no evidence in the ER records of a loss of range of motion due to

pain in his back and/or neck. Instead, the pain was in his abdomen—an area where he

had been suffering pain prior to the accident.


       There was no evidence Balderas suffered any observable injuries and the EMS

records at the time of the accident show that (1) Balderas suffered no loss of

consciousness at the site of the accident, (2) he complained to EMS that he was only

having minor pain to his neck, (3) he was ambulatory at the site of the accident and at the

time of his admission to the ER, (4) he denied any numbness or a tingling sensation to

his hands, feet, or other areas of his body, (5) his CT scan showed no acute fracture or

                                              9
significant misalignment, and (6) he was advised that he could return to work in three

days and/or the next day with no restrictions. Further, it was approximately eight months

after suit was filed and a year and a half after the accident before he visited a physician

clinic complaining of upper back and neck pain. Upon examination at the clinic, his x-

rays appeared normal and his musculoskeletal examination showed he had a normal

range of motion and normal strength even though he complained of pain when his arms

were elevated.


       Given the objective evidence that Balderas’s injury was only slight and the

subjective nature of his and his wife’s testimony, we cannot agree to “unfind” the jury’s

findings and substitute our judgment for that of the jury. While the chiropractor noted that

his range of motion was somewhat limited upon examination, the jury was free to believe

or disbelieve this was any evidence of physical impairment resulting from the accident.

Accordingly, we hold that the evidence was factually sufficient to support the jury’s

findings and conclude that the jury’s findings of “zero” in response to questions of

damages for past and future physical impairment are not so against the great weight and

preponderance of the evidence as to be clearly wrong or manifestly unjust.


       Having determined there was sufficient evidence to support the jury’s “zero” award

of damages for past and future physical impairment, we cannot find that the trial court

acted in an unreasonable or arbitrary manner or without reference to any guiding rules or

principles by denying Balderas’s motion for a new trial. Accordingly, issue one, as to both

subparts, is overruled.




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CONCLUSION

The trial court’s judgment is affirmed.




                                           Patrick A. Pirtle
                                                Justice




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