                                   NO. 07-04-0362-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                  DECEMBER 15, 2005

                          ______________________________


         JESSE BRYAN SMITH AND THE SALVATION ARMY, APPELLANTS

                                            V.

                              OTIS M. SCOTT, APPELLEE


                        _________________________________

             FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

                  NO. 90,718-A; HONORABLE BRIAN POFF, JUDGE

                         _______________________________

Before REAVIS and CAMPBELL and HANCOCK, JJ.


                               MEMORANDUM OPINION


       Appellants, Jesse Bryan Smith and The Salvation Army, appeal a judgment following

a jury trial awarding appellee, Otis M. Scott, damages for personal injuries sustained in an

autom obile accident. By two issues, Smith and The Salvation Army contend the trial court

erred because (1) there was no evidence, or factually insufficient evidence, to support the
award of $75,000 for future loss of earning capacity, and (2) there was no evidence, or

factually insufficient evidence, to support the award of $75,000 for past loss of earning

capacity. 1 W e affirm.


       In September 2002, Scott was injured when his vehicle collided with a Salvation

Army truck driven by Smith. One day following the collision, Scott began experiencing pain

in his shoulder and decided to seek treatment. Following x-rays, pain medication was

prescribed and Scott was sent hom e. W hen the pain persisted, his fam ily physician, Dr.

Don Frank, referred him to Dr. Howard Berg, an orthopedic surgeon. After reviewing Scott’s

x-rays and MRIs, Dr. Berg diagnosed Scott’s injury as a left shoulder rotator cuff tear. In

May 2003, Scott underwent surgery to repair his shoulder.


       At the time of the collision, Scott, although age 78 continued working as a self-

employed builder and general contractor. Primarily, he was engaged in remodeling jobs,

but he occasionally constructed new houses. Scott testified that from the date of his injury

until May 2003, when he underwent surgery to repair his rotator cuff, he was physically

unable to work as he had prior to the collision, but he was able to work several “sm all jobs.”

However, he testified that due to the limited mobility in his shoulder, his participation on

those jobs was limited to supervising a crew of workers. Following his surgery in May 2003,

Scott was unable to do any work for four months. Scott testified that he experienced a


       1
        The Salvation Army does not challenge the jury awards of $21,101.03 for medical
care in the past, $15,000 for physical pain, mental anguish, and physical impairment in the
past and $13,898.97 for physical pain, mental anguish, and physical impairment in the
future.

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significant decrease in earnings as a result of his inability to use his shoulder in his

employment.


       At the conclusion of the evidence, among other awards, the jury returned a verdict

awarding Scott a total of $200,000 in damages, which included $75,000 for lost earning

capacity in the past and $75,000 for lost earning capacity in the future. Smith and The

Salvation Army subsequently moved for judgment notwithstanding the verdict contending

there was no evidence, or the evidence was legally insufficient to sustain the award of

damages for loss of past and future earning capacity. The court overruled the motion and

rendered judgment on the verdict. Smith and The Salvation Army then filed a motion for

new trial claiming the evidence was factually insufficient to support the award. The motion

was overruled by operation of law, and Smith and The Salvation Army filed a notice of

appeal.


       W hen an appellant challenges both the legal and factual sufficiency of the evidence,

the appellate court should first review the legal sufficiency challenge. Glover v. Texas Gen.

Indem. Co., 619 S.W .2d 400, 401 (Tex. 1981). W hen an appellant attacks the legal

sufficiency of an adverse finding on which he did not have the burden of proof, we must

review the entire record for any probative evidence which, when viewed in its m ost favorable

light, supports the adverse finding.   Lee Lewis Constr., Inc. v. Harrison, 70 S.W .3d 778,

782 (Tex. 2001); Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W .2d 264, 276

(Tex.App.–Amarillo 1988, writ denied). If there is more than a scintilla of evidence to



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support the verdict, we uphold the judgment. Lenz v. Lenz, 79 S.W .3d 10, 19 (Tex. 2002).

W e must disregard all evidence and inferences to the contrary. Id.


       W hen an appellant challenges the factual sufficiency of an adverse finding where he

did not have the burden of proof, we must examine the entire record to determ ine if there

is some probative evidence to support the finding; and if there is, we must determine

whether the evidence which supports the finding is so weak as to be clearly wrong and

manifestly unjust. Cain v. Bain, 709 S.W .2d 175, 176 (Tex. 1986). W hen considering

factual sufficiency challenges to a jury's verdict, courts of appeals must consider and weigh

all of the evidence, not just evidence which supports the verdict. See Maritime Overseas

Corp. v. Ellis, 971 S.W .2d 402, 407 (Tex. 1998); Raw Hide Oil & Gas, 766 S.W .2d at 276.


       Addressing the arguments in logical order, we begin by reviewing Smith and The

Salvation Army’s second issue. By this issue, they contend there was no evidence, or

factually insufficient evidence to support the award of $75,000 for past loss of earning

capacity. W e disagree.


       Loss of earning capacity is the plaintiff’s diminished capacity to earn a living. Koko

Motel, Inc. v. Mayo, 91 S.W .3d 41, 51 (Tex.App.–Am arillo 2002, pet. denied). It entails the

consideration of what plaintiff’s capacity to earn a livelihood actually was and assesses the

extent to which it was impaired.      Id.   Loss of past earning capacity is the plaintiff’s

diminished capacity to earn a living during the period between the injury and the date of trial.

See Strauss v. Continental Airlines, Inc., 67 S.W .3d 428, 435 (Tex.App.–Houston [1st Dist.]


                                               4
2002, no pet.). In order to support such a claim, the plaintiff must introduce evidence from

which a jury m ay reasonably measure in monetary terms his earning capacity prior to injury.

Id. If the plaintiff’s earning capacity is not totally destroyed, but only impaired, the extent of

his loss can best be shown by com paring his actual earnings before and after his injury.

McIver v. Gloria, 140 Tex. 566, 169 S.W .2d 710, 712 (1943). See also Strauss, 67 S.W .3d

at 436. In determ ining whether evidence is sufficient, there is no general rule, and each

case must be judged on its particular facts. McIver, 169 S.W .2d at 712.


       In the present case, Scott’s claim for loss of past earning capacity is based on a

seventeen-m onth period between his injury, Septem ber 24, 2002, and his trial, February 17,

2004. Based on his business records, Scott testified his net income in 2002 was $65,405.

He divided this figure by the number of weeks he worked in 2002 to determine that he

earned approximately $1,525 per week in 2002. He also divided his net income in the year

following his injury, $9,624, by the number of weeks he was able to work in 2003 and

determined that he earned approxim ately $401 per week in 2003. Based on this evidence,

a jury could have reasonably concluded that Scott’s income was diminished by at least

$101,701 in the seventeen-m onth period between the date of his injury and the date of his

trial. 2 Although this figure represents Scott’s potential lost earnings due to his injury, it is

also indicative of his diminished earning capacity. See id.


       2
          This amount can be reached by multiplying the amount Scott was capable of earning
per week prior to his injury, $1,525, by the number of weeks from his injury until the time of
his trial, approximately 73. This results of earnings of $111,325. Subtract the $9,624 Scott
actually earned in 2003, and he is left with a difference in earnings of $101,701 over the
seventeen-month period.

                                                5
       Smith and The Salvation Army contend this evidence by itself was insufficient to

support a jury determination of loss of past earning capacity because Scott could not name

one customer he turned down because of his injuries and could not describe how much

more money he could have made but for his injuries. However, due to the unforeseeable

nature of Scott’s business, it is not clear whether this type of inform ation was readily

ascertainable at trial. More im portant, the only evidence Scott was required to present was

evidence from which a jury could determine earning capacity prior to the injury in monetary

terms. Strauss, 67 S.W .3d at 435. W e find the comparison of Scott’s weekly earnings from

2002 to 2003 was probative evidence in this regard and allowed the jury to reasonably

conclude Scott’s earning capacity was diminished in the amount of $75,000 over the

seventeen-month period before trial. Furthermore, we do not find this evidence to be so

weak as to be clearly wrong and manifestly unjust. Their second issue is overruled.


       By their first issue, Smith and The Salvation Army contend there was no evidence,

or factually insufficient evidence to support the award of $75,000 for future loss of earning

capacity. We disagree.


       Loss of future earning capacity is the plaintiff’s diminished capacity to earn a living

after the trial. Plainview Motels, Inc. v. Reynolds, 127 S.W .3d 21, 35 (Tex.App.–Tyler 2003,

pet. denied). To support an award for damages for loss of future earning capacity, the

plaintiff must introduce evidence sufficient to allow the jury to reasonably measure earning

capacity in monetary terms. Id. at 35-36. Because the am ount of m oney a plaintiff might



                                              6
earn in the future is always uncertain, the jury has considerable discretion in determining

this amount. McIver, 169 S.W .2d at 712.


       Sm ith and The Salvation Arm y maintain the evidence presented in the present case

was insufficient because Scott said he would rely on the good judgment of the jury to

determine any compensation for loss of future earning capacity. Scott, on the other hand,

directs us to the evidence of his weekly earning capability. W e find this evidence was

sufficient to allow the jury to reasonably conclude Scott’s future earning capacity was

diminished in the amount of $75,000. Furthermore, Dr. Berg testified by video deposition

regarding the extent of Scott’s injury and the permanent restrictions on the affected

shoulder. There was also testimony by Scott, his wife, and an acquaintance regarding how

the injury affected Scott’s stamina, ability, and desire to perform as he had prior to the

collision. W e find all of this testimony to be more than a scintilla of evidence regarding his

diminished capacity to earn a living in the future and not so weak as to be clearly wrong and

unjust. Smith and The Salvation Army’s first issue is overruled.


       Accordingly, the trial court’s judgment is affirmed.



                                           Don H. Reavis
                                             Justice




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