                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-13-00210-CV
                           ____________________

               THE CITY OF BEAUMONT, TEXAS, Appellant

                                         V.

JAY BROCATO AND WIFE, VALERIE BROCATO, INDIVIDUALLY AND
             AS NEXT FRIENDS OF M.B., Appellees
_______________________________________________________            ______________

                    On Appeal from the 136th District Court
                           Jefferson County, Texas
                         Trial Cause No. D-183,620
________________________________________________________             _____________

                          MEMORANDUM OPINION

      This appeal by the defendant from a judgment rendered in a personal injury

case raises three questions: (1) whether the jury had legally sufficient evidence to

support its award to the minor plaintiff for her future medical expenses; (2)

whether the trial court erred in rendering a judgment that included an award for the

minor’s past medical expenses; and (3) whether the trial court erred by taxing the

defendant with all costs of court when, in a prior appeal, we ordered that plaintiffs


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were to pay the costs for that appeal. We overrule the issues relating to the awards

of past and future medical expenses; we further conclude the trial court erred when

it taxed all costs to defendant, given our court’s mandate in the prior appeal. As

modified to reallocate the assessment of taxable costs, the trial court’s judgment is

affirmed.

                                    Background

      In 2008, Jay and Valerie Brocato’s daughter, M.B., was involved in a

collision with a police officer employed by the City of Beaumont. The Brocatos

sued the City; following the first trial of the case, a jury found the City’s officer

negligent. The City appealed. In that appeal, we found the trial court erred by

failing to submit a question, requested by the City, asking whether the officer was

responding to an emergency when the collision occurred. City of Beaumont v.

Brocato, No. 09-10-00473-CV, 2011 WL 4716296, at **3-4 (Tex. App.—

Beaumont Oct. 6, 2011, no pet.) (mem. op.). We reversed the judgment and

remanded the case for a new trial. Id. at *5. The mandate rendered in connection

with the appeal of the verdict in that case recited: “All costs of the appeal are

assessed against the [Brocatos].”

      On retrial, the jury found both drivers were negligent, and found M.B. less

than fifty percent responsible for the collision. Based on the jury’s findings on the

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liability and proportionate fault issues, the jury’s findings on the issues of future

medical, past physical pain and mental anguish, future physical pain and mental

anguish, and past and future physical impairment, along with the trial court’s

finding on the question of past medical, the Brocatos were awarded a judgment of

$29,149.21.

                                Standard of Review

      In issue one, the City challenges the legally sufficiency of the evidence

supporting the jury’s finding that M.B. will probably incur medical expenses in the

future. Issue two challenges the trial court’s finding that M.B. incurred medical

expenses in the past.

      Evidence is legally sufficient if it “would enable reasonable and fair-minded

people to reach the verdict under review.” City of Keller v. Wilson, 168 S.W.3d

802, 827 (Tex. 2005). In evaluating the evidence’s legal sufficiency, “we credit

evidence that supports the verdict if reasonable jurors could, and disregard contrary

evidence unless reasonable jurors could not.” Kroger Tex. Ltd. P’ship v. Suberu,

216 S.W.3d 788, 793 (Tex. 2006) (citing City of Keller, 168 S.W.3d at 827); see

Am. Interstate Ins. Co. v. Hinson, 172 S.W.3d 108, 114 (Tex. App.—Beaumont

2005, pet. denied). A defendant will prevail on a legal sufficiency challenge if the

record from the trial court shows one of the following: (1) a complete absence of

                                         3
evidence of a vital fact; (2) rules of law or rules of evidence bar the court from

giving weight to the only evidence offered to prove a vital fact; (3) the evidence

offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence

conclusively establishes the opposite of the fact that is at issue in the appeal. City

of Keller, 168 S.W.3d at 810 (quoting Robert W. Calvert, “No Evidence” &

“Insufficient Evidence” Point of Errors, 38 Tex. L. Rev. 361, 362-63 (1960)). The

same standards are used to review a legal sufficiency challenge to a jury’s verdict

as are used to review a challenge to a trial court’s award. See Ortiz v. Jones, 917

S.W.2d 770, 772 (Tex. 1996); Anderson v. City of Seven Points, 806 S.W.2d 791,

794 (Tex. 1991)

                             Future Medical Expenses

      The City contends that the jury’s award of $25,000 in future medical

expenses was based on testimony indicating that M.B.’s need for future ankle

surgery is only possible. Stated another way, the City contends the Brocatos failed

to show that M.B. will probably need to have surgery to her ankle.

      In Texas, the “‘reasonable probability’” rule is followed for recovering

damages for a plaintiff’s future medical expenses. Antonov v. Walters, 168 S.W.3d

901, 908 (Tex. App.—Fort Worth 2005, pet. denied)). To recover future medical

expenses, a plaintiff must show there is a “reasonable probability” that such

                                          4
medical expenses will be incurred in the future. Id. “Although the preferred

practice is to establish future medical expenses through expert medical testimony,

no rule requires the plaintiff to establish such expenses through expert testimony or

based on a reasonable medical probability.” Id.; see also Finley v. P.G., 428

S.W.3d 229, 233 (Tex. App.—Houston [1st Dist.] 2014, no pet.). Instead, the jury

may award a plaintiff for future medical expenses based on the nature of the

plaintiff’s injuries, the extent the plaintiff required medical care before the date the

trial occurred, and the plaintiff’s condition at the time of trial. Antonov, 168

S.W.3d at 908. Generally, juries are afforded discretion regarding their decisions to

award or to reject claims seeking an award of future medical expenses. Id.

      The testimony in this case that addressed M.B.’s past and future medical

expenses included the testimony of M.B.’s treating physician, Dr. Keith Hill, a

board certified orthopedic surgeon. Dr. Hill saw M.B. at various times between

May 2008 and December 2009. Dr. Hill’s testimony indicates that he began

treating M.B. four days after the collision. According to Dr. Hill, M.B. had a

comminuted fracture of the ankle, an injury he described as serious and painful. A

CT scan of the fractured ankle showed that “there were lots of small fragments that

had been broken off on the outside part of the ankle bone that were displaced

slightly from their original position on the ankle bone.” Dr. Hill testified about

                                           5
M.B.’s treatment, consisting of physician’s visits, the immobilization of her right

ankle, and physical therapy, all of which he related to the injuries that M.B. had

suffered in the collision. Dr. Hill expressed his opinions on these matters in terms

of reasonable medical probability.

       Dr. Hill’s testimony also details the treatment M.B. required for her injuries.

M.B.’s right ankle was immobilized so that it could heal. Dr. Hill prescribed

physical therapy, and M.B. attended physical therapy for ligament injuries to her

left ankle that also resulted from the collision. Dr. Hill explained that M.B.’s last

appointment with him was in December 2009; during that visit, M.B. reported that

she was still having problems with her right ankle, including pain, and a problem

that she described as “giving way.” During her last appointment, M.B. also related

that she continued to have “some discomfort with her activities,” and she indicated

that she was using braces on her right foot when active. According to Dr. Hill, he

understood that M.B. was having sporadic but not daily problems with her ankle.

      Dr. Hill also addressed questions about whether M.B. would need surgery on

her right ankle. According to Dr. Hill, the type of injury M.B. suffered to her right

ankle does not normally require surgery. However, Dr. Hill explained that M.B.

would be a candidate for surgery if she was still having complaints that her ankle

and foot gave way, and if she was still complaining about having considerable pain

                                          6
and needing to brace her ankle. Dr. Hill estimated that if M.B. had surgery on her

right ankle, the medical expenses related to the surgery would be between $15,000

and $25,000. When reviewed in the light most favorable to the jury’s verdict, Dr.

Hill’s opinions about the cost and need of future surgery are expressed in terms of

a probability even though his predictions are conditioned on assumptions about the

extent of M.B.’s recovery.

      At trial, M.B. testified that she had not fully improved, and that she did not

believe she would completely recover. She described that she had fluid in her right

ankle on waking in the morning, which caused her to limp. She testified that she

continued to have occasions when her right foot gave way, making her ankle

“really painful[,]” and resulting in symptoms that lasted four or five days. M.B.

testified that she thought she would eventually need surgery on her right ankle, and

she indicated that at some point in time, she was going to have the surgery.

      We view the evidence on the question of whether the jury could reasonably

award future medical expenses by reviewing the evidence in the light most

favorable to the jury’s verdict, crediting evidence favorable to that party if

reasonable jurors could, and disregarding contrary evidence unless reasonable

jurors could not. City of Keller, 168 S.W.3d at 827. To recover for future medical

expenses, a plaintiff must show that there is a reasonable probability that expenses

                                         7
resulting from the injury will be necessary in the future. Pilgrim’s Pride Corp. v.

Cernat, 205 S.W.3d 110, 121 (Tex. App.—Texarkana 2006, pet. denied). The

evidence needed to prove that a plaintiff is entitled to recover for future medical

expenses requires that a plaintiff show a reasonable probability that the medical

expenses will be incurred, and the probable cost of such expenses. Bituminous Cas.

Corp. v. Cleveland, 223 S.W.3d 485, 490 (Tex. App.—Amarillo 2006, no pet.).

The jury can infer that it is reasonably probable the plaintiff will incur future

medical expenses based on the nature of the injuries the plaintiff suffered, the

medical care the plaintiff received before trial, the plaintiff’s progress toward

recovery under the treatment received, and the plaintiff’s condition at the time of

trial. Volkswagen of Am., Inc. v. Ramirez, 79 S.W.3d 113, 127 (Tex. App.—Corpus

Christi 2002), rev’d on other grounds, 159 S.W.3d 897 (Tex. 2004); Rosenboom

Mach. & Tool, Inc. v. Machala, 995 S.W.2d 817, 828 (Tex. App.—Houston [1st

Dist.] 1999, pet. denied).

      The testimony before the jury about M.B.’s injury, the testimony by Dr. Hill

that M.B. would probably need the surgery if she was still having significant

complaints, and M.B.’s testimony about the problems that she continued to have

with her right ankle several years after the collision constitutes substantial and

probative evidence supporting the jury’s inference that M.B. will need surgery to

                                        8
her right ankle. See Antonov, 168 S.W.3d at 908. While the evidence in the record

regarding whether M.B. will need future surgery was not conclusive, it is also

more than a scintilla, as the testimony enabled reasonable and fair minded jurors to

conclude that M.B. would need surgery to her ankle. See City of Keller, 168

S.W.3d at 827. We overrule issue one.

                               Past Medical Expenses

      In issue two, the City contends the “evidence offered to establish [the

Brocatos’] claim for past medical expenses constituted no evidence.” The City

correctly notes that the Brocatos did not submit an issue to the jury on the amount

of the past medical expenses that the Brocatos paid on M.B.’s behalf. The City

then concludes that the trial court’s judgment allowing the Brocatos to recover for

M.B.’s past medical expenses should be reversed, and it contends that part of the

award should be deleted from the judgment.

      The reporter’s record reflects that the affidavits used to prove the amount the

Brocatos incurred for M.B.’s medical treatment were admitted as trial court

exhibits, and they were not admitted into the evidence considered by the jury. The

reporter’s record further reflects that the City objected to the affidavits showing the

amount the Brocatos incurred in past medical expenses on the basis that the records

were not properly authenticated. The City does not complain about the admission

                                          9
of the billing records on that basis in this appeal. Additionally, the City did not

object when the charge submitted to the jury by the trial court did not include a

question regarding M.B.’s past medical expenses that resulted from the collision.

Nevertheless, the plaintiffs’ suit includes a claim for past medical expenses.1

      A plaintiff has the burden to prove the amount of medical expenses the

plaintiff incurred and to establish that the expenses incurred were reasonable and

necessary to treat the plaintiff for the injuries resulting from the defendant’s

negligence. Monsanto Co. v. Johnson, 675 S.W.2d 305, 312 (Tex. App.—Houston

[1st Dist.] 1984, writ ref’d n.r.e.). Expert testimony may be used in proving that the

medical expenses a plaintiff incurred were reasonable and necessary. Castillo v.

Am. Garment Finishers Corp., 965 S.W.2d 646, 654 (Tex. App.—El Paso 1998, no

pet.). In this case, the record shows that the Brocatos offered into evidence several

affidavits from custodians of records that addressed the cost and necessity of

M.B.’s past medical expenses, a procedure provided by section 18.001 of the

Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. §

18.001 (West Supp. 2014); 2 Castillo, 965 S.W.2d at 654. Section 18.001(b) states:

      1
         The Brocatos’ Second Amended Original Petition was their “live pleading”
at the time of trial.
      2
       We cite to the current version of the statute, as the subsequent amendments
do not affect the outcome of this appeal.
                                         10
       (b) Unless a controverting affidavit is served as provided by this
       section, an affidavit that the amount a person charged for a service
       was reasonable at the time and place that the service was provided and
       that the service was necessary is sufficient evidence to support a
       finding of fact by judge or jury that the amount charged was
       reasonable or that the service was necessary.

Tex. Civ. Prac. & Rem. Code Ann. § 18.001(b). The statute provides that the

affidavit may be either by the person who provided the service or by a records

custodian, and must be served on opposing counsel at least thirty days before the

day on which evidence is first presented at the trial of the case. See id. § 18.001(c)-

(d).

       The record shows that the Brocatos submitted the affidavits to establish the

amount of the past medical expenses they paid on M.B.’s behalf. See id. §

18.001(b); Johnson, 675 S.W.2d at 312. The trial court admitted the affidavits

establishing the amount that was paid in past medical expenses “as Court exhibits

only.” As a result, the exhibits that related to the past medical expenses incurred by

the Brocatos were before the trial court, but they were not admitted into the

evidence that was considered by the jury. And, the City did not file affidavits

controverting the affidavits of the various records custodians regarding the amount

of the past medical expenses that the Brocatos incurred for M.B.’s treatment. See

Tex. Civ. Prac. & Rem. Code Ann. § 18.001(b). The various billing records and

accompanying affidavits admitted as exhibits describe the amounts billed as
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reasonable and related to M.B.’s injuries. See id. § 41.0105 (West 2008) (limiting a

plaintiff’s recovery of past medical expenses to the amount actually paid or

incurred by or on behalf of the claimant). The trial court would also have been

aware of the testimony before the jury describing M.B.’s treatment.

      The crux of the City’s complaint is that the affidavits establishing the

amounts the Brocatos paid as being reasonable were never considered by the jury.

But, when the trial court, in its charge, failed to include an issue on past medical

expenses, the City did not object that the charge omitted an element of damages or

that it wanted the jury to resolve any issue related to M.B.’s past medical expenses.

The affidavits of the records custodians established that the amounts the Brocatos

incurred for M.B.’s treatment were reasonable and necessary, and they were

admitted during the trial as evidence to be considered by the trial court.

      When a jury charge omits an element of a recovery that is supported by the

pleadings and the evidence, the trial court is deemed to have found the omitted

element in a manner consistent with the judgment that it renders. See Tex. R. Civ.

P. 279. Rule 279 provides:

      When a ground of recovery or defense consists of more than one
      element, if one or more of such elements necessary to sustain such
      ground of recovery or defense, and necessarily referable thereto, are
      submitted to and found by the jury, and one or more of such elements
      are omitted from the charge, without request or objection, and there is
      factually sufficient evidence to support a finding thereon, the trial
                                          12
      court, at the request of either party, may after notice and hearing and
      at any time before the judgment is rendered, make and file written
      findings on such omitted element or elements in support of the
      judgment. If no such written findings are made, such omitted element
      or elements shall be deemed found by the court in such manner as to
      support the judgment. A claim that the evidence was legally or
      factually insufficient to warrant the submission of any question may
      be made for the first time after verdict, regardless of whether the
      submission of such question was requested by the complainant.

Id. The purpose of the ‘necessarily referable’ requirement is to give parties fair

notice of, and an opportunity to object to a partial submission. Superior Trucks,

Inc. v. Allen, 664 S.W.2d 136, 144 (Tex. App.—Houston [1st Dist.] 1983, writ

ref’d n.r.e.). “Once a party is on notice of the independent ground of recovery or

defense due to the existence of an issue ‘necessarily referable’ thereto, if that party

fails to object or request submission of the missing issues, he cannot be heard to

complain on appeal, as he is said to have consented to the court’s findings on the

missing issues.” Id.

      Generally, the issue of damages in a personal injury includes several

elements of damage, and a claim for past medical expense is typically one of them.

See Gulf States Utils. Co. v. Dryden, 735 S.W.2d 263, 268 (Tex. App.—Beaumont

1987, no pet.) (noting the jury considered the element of past medical expenses in

determining damages). Given the City’s failure to object to the partial submission

of the case in the charge when evidence was admitted during the trial on the issue

                                          13
of past medical expenses, we must deem the element to have been “found by the

court in such manner as to support the judgment.” Tex. R. Civ. P. 279. Here, the

trial court, through the judgment, allowed the Brocatos to recover on their claim

for past medical expenses, a claim on which the Brocatos both had pleadings and

presented evidence. See id.; Ramos v. Frito-Lay, Inc., 784 S.W.2d 667, 668 (Tex.

1990). Considering the affidavits of the records custodians before the trial court,

and the other testimony in the record, the trial court’s conclusion that the Brocatos

incurred approximately $3,582 in past medical expenses on M.B.’s behalf is a

finding the trial court could reasonably make based on the evidence that was before

it. We overrule issue two.

                                    Taxable Costs

      In issue three, the City argues the trial court erred by taxing the City with all

taxable costs when the mandate from the appeal that followed the first trial, appeal

number 09-10-00473-CV, ordered the Brocatos to pay all of the costs resulting

from the City’s appeal. In a post-trial motion, the City objected to the trial court’s

award of all taxable costs following the retrial that occurred on remand,

complaining that the judgment the trial court rendered failed to account for the

appellate costs awarded in the prior appeal. See Tex. R. App. P. 43.4 (awarding

prevailing party in a civil case the appellate costs that were incurred by that party).

                                          14
According to the City, the trial court should have included language in the

judgment requiring the Brocatos to pay the costs taxed against them following the

City’s first appeal.

      We agree the trial court was obligated to enforce our mandate in cause

number 09-10-00473-CV. See Tex. R. App. P. 51.1(b); Whitmire v. Greenridge

Place Apartments, 333 S.W.3d 255, 261 (Tex. App.—Houston [1st Dist.] 2010,

pet. dism’d). One of the ways it could have done so was by offsetting the judgment

with our prior award of the costs related to the appeal governed by our mandate.

Cf. Zeecon Wireless Internet, LLC v. McEwen, No. 03-08-00214-CV, 2010 WL

521111, at *3 (Tex. App.—Austin Feb. 12, 2010, no pet.) (mem. op.) (enforcing

the appellate court’s mandate assessing the costs of the first appeal by offsetting

damage award in final judgment). We sustain issue three. We modify that part of

the trial court’s final judgment by conforming the language in the final judgment at

page four, paragraph one, to read: “That Plaintiffs, JAY BROCATO and wife,

VALERIE BROCATO, Individually and as Next Friends of MACY BROCATO,

and MACY BROCATO, Individually, have and recover of and against Defendant,

THE CITY OF BEAUMONT, TEXAS, the total sum of $29,149.21 ((the gross

amount of the verdict [together with Plaintiff MACY BROCATO’s paid medical

expenses ($3,581.93) as reflected by Plaintiff’s Exhibit No. 3], less 40%

                                        15
contributory negligence of MACY BROCATO)); less the appellate costs taxed

against the Brocatos per the mandate of the Ninth Court of Appeals in appellate

cause number 09-10-00473-CV; plus pre-judgment interest in the amount of

$1,877.12 through January 7, 2013, and thereafter until Judgment is signed at the

rate of $1.12 per day, with post-judgment interest thereon at the highest legal rate,

from the date of rendition of Judgment until paid.”

      With respect to the current appeal, we tax 90% of the costs of the appeal to

the City and tax 10% of those costs to the Brocatos. As modified, the trial court’s

judgment is affirmed.

      AFFIRMED AS MODIFIED.



                                              ________________________________
                                                        HOLLIS HORTON
                                                            Justice
Submitted on July 8, 2014
Opinion Delivered October 30, 2014

Before Kreger, Horton and Johnson, JJ.




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