Opinion filed August 1, 2019




                                     In The

        Eleventh Court of Appeals
                                  __________

                               No. 11-17-00219-CV
                                   __________

 LUIS MARTINEZ AND ANNA MARIA MARTINEZ, Appellants
                                       V.
       JACOB ERIC LEMENSE AND JARED MILLION,
   INDIVIDUALLY AND D/B/A STRONG TOWER ELECTRIC,
                      Appellees


                     On Appeal from the 385th District Court
                             Midland County, Texas
                        Trial Court Cause No. CV 51,197


                      MEMORANDUM OPINION
      This appeal challenges a jury verdict awarding Appellants damages for
injuries sustained in a motor vehicle accident. Appellants were occupants of a
vehicle rear-ended by a pickup driven and owned by Appellees. Following the
accident, Appellants brought suit against Appellees seeking damages for past and
future pain, suffering and mental anguish, loss of wages and earning capacity,
physical impairment, and medical care. The jury found in favor of Appellants and
awarded Appellant Anna Maria Martinez $5,000 for past pain and mental anguish,
$10,000 for loss of earning capacity, and $146,425.41 for past medical expenses.
The jury awarded Appellant Luis Martinez $5,034 for past medical expenses.
However, in three issues, Appellants challenge the factual sufficiency of the jury’s
verdict, arguing that the award is unreasonably low given Appellants’ severe
injuries. Because we hold that the evidence supporting the jury’s award of damages
is not so contrary to the overwhelming weight of the evidence as to make the
judgment clearly wrong and manifestly unjust, we affirm the trial court’s judgment.
                                  Background Facts
      Appellants were occupants in a vehicle that was rear-ended by a pickup driven
by Appellee Jacob Eric Lemense. Lemense was an employee of Strong Tower
Electric, a company owned by Appellee Jared Million. Following the accident,
Appellants sued Lemense and Million (individually and d/b/a Strong Tower Electric)
for, among other things, negligence and gross negligence and sought damages for
injuries allegedly sustained during the accident.
      Luis Martinez testified at trial. Luis testified that, while stopped at a stoplight,
he heard a “crashing sound” and felt an impact from behind, which pushed his pickup
forward. After confirming that neither he nor Anna had any visible injuries, Luis
examined the condition of the vehicles. Luis recognized the driver of the other
pickup—Luis had noticed him at an earlier stoplight when he appeared to be looking
down at his phone. Luis noted that Appellees’ pickup was leaking fluid and that the
front end was crumpled in. However, Luis’s pickup, which was a company pickup,
only had minor visible damage with its reinforced steel bumper bent. Because
neither Luis nor Anna was complaining about pain at the time, they declined
ambulance treatment, and Luis drove Anna home and then continued to work to
report that the pickup had been in an accident.


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       Luis further testified that, despite not feeling pain initially, Anna complained
to Luis about back pain later that day, and he drove her to the emergency room. Luis
explained how Anna’s pain grew worse and prevented her from taking part in her
normal activities and routines despite numerous attempts at therapy and treatment
over the next few months. Luis testified that eventually, after two surgeries, Anna’s
condition improved somewhat but that she was still physically unable to do many of
the activities and chores she did before the accident. Although Luis testified that
Anna did not return to work until five or six months after the accident, Luis clarified
on cross-examination that Anna only missed work to attend her numerous doctors’
appointments.
       Likewise, Luis testified that, although he too did not initially feel pain after
the accident, he felt pain the following morning. Although, at first, Luis did not
believe that the pain was bad enough to see a doctor, Luis eventually sought
chiropractic therapy. The pain improved after a few months of treatment; however,
Luis testified that he still feels a “little bit of pain.”
       Anna Maria Martinez also testified at trial. Anna testified that their vehicle
was hit fast and hard and estimated that the impact moved their vehicle twenty feet.
Like Luis, Anna testified that she had noticed Lemense texting shortly before the
accident. Anna explained that, immediately after the accident, she was in shock but
declined to go to the hospital; Anna did not feel pain until later that day.
       Anna testified that she initially complained about pain in her neck, arm, and
lower back. After first receiving treatment from multiple specialists, Anna was
eventually referred to Dr. Benjamin Cunningham, an orthopedic surgeon. Because
multiple therapies failed to relieve her pain, Dr. Cunningham ultimately determined
that Anna required surgery. Anna testified that she ultimately underwent two back
surgeries. Anna also testified that, despite her pain, she continued to work as a
housekeeper for a hotel throughout the time she was receiving therapy and
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undergoing her surgeries. Anna explained that, despite being temporarily on a
walker, she actually worked more hours after the accident than she did before.
However, both Anna and a coworker, Katherine Warren, testified that Anna’s work
suffered negatively after the crash. Additionally, although Anna admitted that her
condition had improved since the second surgery, Anna testified that she is now
unable to do the housekeeping work she did before the accident, is currently out of
work, and is often affected by the weather.
      Furthermore, Anna also acknowledged that, some years prior to the accident,
she had fallen down some stairs and injured her back. However, Anna insisted that
therapy and one injection had remedied the injuries stemming from the fall.
Although Appellees offered health records on cross-examination suggesting that
Anna had previously been injured in another car accident, Anna denied that she had
ever been injured in a previous car accident or had suffered previous back pain.
Likewise, although medical reports indicated that Anna informed Dr. Cunningham
that she had been hit by a vehicle traveling at sixty miles per hour, Anna denied that
she had made such a statement.
      Dr. Cunningham’s video deposition testimony was also presented at trial.
Dr. Cunningham testified that he treated both Luis and Anna after the accident.
Dr. Cunningham explained that both Anna and Luis had back pain stemming from
the accident but that Luis’s pain, unlike Anna’s, subsided after a few months.
Regarding Anna, Dr. Cunningham testified that, due to Anna’s persistent pain, he
recommended surgery. Although the first surgery initially appeared successful,
Anna still complained of pain following the surgery. As a result, Dr. Cunningham
ordered an MRI and identified Anna’s SI joint (sacroiliac joint) as a possible source
of her pain. Dr. Cunningham explained that, because a surgery to fuse the SI joint
is incredibly dangerous, he instructed Anna to pursue multiple alternative therapies
to try to relieve the pain following the first surgery. However, after the alternative
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therapies failed to relieve Anna’s pain, he determined that a second surgery to
perform a fusion of Anna’s SI joint was necessary.
      Dr. Cunningham further explained that back pain can result from even minor
collisions and that it is impossible to tell when back pain started for a patient other
than by what a patient tells you. Although Dr. Cunningham was not aware that Anna
had previously received epidural steroid injections for back pain, Dr. Cunningham
testified that (1) Anna’s injuries, pain, and treatments were the result of this specific
crash; (2) all procedures were necessary to treat her pain; and (3) it was not his
opinion that Anna was in any way embellishing or intentionally making her
symptoms worse.
      Lastly, Appellee Lemense testified at trial. Lemense acknowledged that he
caused the accident; Lemense agreed that neither Anna nor Luis “did anything
wrong.” However, Lemense denied that the impact was “jarring.” Instead, Lemense
testified that he was traveling at roughly twenty or twenty-five miles per hour when
he struck Appellants’ pickup, shoving it forward “five feet.” Because Lemense’s
pickup struck the ball hitch on Appellants’ pickup, Appellants’ pickup did not suffer
any visible damage, and Luis and Anna drove off shortly after the accident.
Conversely, Lemense’s pickup suffered front-end damage, including a “busted”
radiator, and had to be towed. Although the collision was not violent enough to
deploy the pickup’s airbags, Lemense testified that he too was suffering from back
pain as a result of the accident.
      After hearing the evidence, the jury returned a verdict in Appellants’ favor by
a vote of 10–2. The jury awarded Anna $5,000 for past pain and mental anguish,
$10,000 for loss of earning capacity, and $146,425.41 for past medical expenses and
awarded Luis $5,034 for past medical expenses. However, the jury declined to
award damages to Anna for future pain and mental anguish, past physical
impairment, or future physical impairment and declined to award damages to Luis
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for past or future pain and mental anguish or physical impairment. This appeal
followed.
                                      Analysis
      In three issues on appeal, Appellants argue that (1) the jury’s verdict of zero
damages for Anna’s physical impairment lacks factual sufficiency because
Appellants presented uncontroverted and objective evidence of severe injuries
requiring two surgeries and a course of diagnostic treatment that lasted more than
two years, (2) the jury’s verdict of $5,000 for Anna’s physical pain and mental
anguish lacks factual sufficiency because Appellants presented uncontroverted and
objective evidence of severe injuries, and (3) the jury’s verdict of zero damages for
Luis’s physical impairment lacks factual sufficiency because Appellants presented
evidence of damage unique to physical impairment. Thus, Appellants are arguing
that the jury erred by awarding damages less than what Appellants believe were
reasonably necessitated. We disagree.
      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 is against the great weight and preponderance of the evidence. Dow
Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). We review the evidence in
a neutral light and will reverse a finding 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. The factfinder is the sole judge of the
witnesses’ credibility and may choose to believe one witness over another; a
reviewing court may not impose its own opinion to the contrary. Golden Eagle
Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).
      In reviewing the factual sufficiency of a damage award, we consider all the
evidence that bears on the challenged category of damages, even if the evidence also
relates to another category of damages. Id. at 773. A jury generally has discretion
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to award damages within the range of evidence presented at trial so long as a rational
basis for the calculation exists. Gulf States Utils. Co. v. Low, 79 S.W.3d 561, 566
(Tex. 2002); First State Bank v. Keilman, 851 S.W.2d 914, 930 (Tex. App.—Austin
1993, writ denied).
      Matters of pain and mental anguish are necessarily speculative, and it is
particularly within the jury’s province to resolve these matters and decide the
amounts attributable thereto. Grant v. Cruz, 406 S.W.3d 358, 363 (Tex. App.—
Dallas 2013, no pet.). However, the mere fact of injury does not prove compensable
pain and mental anguish. Id. at 364. Instead, “[e]ven when there is uncontroverted
evidence of an injury, a jury may properly deny an award of any damages when the
injuries sustained are subjective, such as back and neck soft-tissue injuries.”
Gutierrez v. Martinez, No. 01-07-00363-CV, 2008 WL 5392023, at *6 (Tex. App.—
Houston [1st Dist.] Dec. 19, 2008, no pet.) (mem. op.). Likewise, when there is
conflicting evidence of the injury’s cause or an alternative explanation for the injured
party’s reported pain, appellate courts have upheld zero damage findings for physical
pain despite the jury finding that the injured party is entitled to damages for medical
expenses. Grant, 406 S.W.3d at 364. Lastly, a jury may choose to disbelieve a
witness, even if the testimony is not contradicted. Id.
      Here, while both Anna and Luis alleged that they suffered pain and injuries as
a result of the accident, and although Dr. Cunningham testified that it was his opinion
that Appellants’ pain was, in fact, a result of the accident, contrary evidence was also
presented.
      Regarding Luis, although Luis claimed he eventually suffered pain as a result
of the accident, Luis also testified that he declined medical attention at the scene of
the accident, proceeded to work, and did not feel pain until the following morning.
Furthermore, Luis admitted that his pain was not severe enough for him to seek
medical treatment until some weeks after the accident. Thus, although the jury
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awarded Luis damages for his medical expenses, given the gap in time between the
accident and the onset of Luis’s pain, and considering the evidence examining the
severity of Luis’s alleged pain and injury, we cannot say that the jury erred in
declining to award additional damages for Luis’s physical impairment. See Golden
Eagle Archery, 116 S.W.3d at 761; Grant, 406 S.W.3d at 363–64.
      Likewise, regarding Anna, although Anna’s pain and injuries were
significantly more severe than Luis’s—as reflected by the jury’s larger award to
Anna—evidence was also presented that Anna too declined medical treatment at the
scene of the accident and did not complain of pain until sometime after the accident.
Furthermore, evidence was also presented suggesting that Anna had previously
sustained injuries to her back in a fall down some stairs and in a previous car
accident. Additionally, conflicting evidence regarding the severity of the accident
involved in the present case and the extent to which Anna’s injuries impacted her
work was also presented. Thus, we cannot say that the jury erred in determining its
apportionment of Anna’s damages. See Golden Eagle Archery, 116 S.W.3d at 761;
Grant, 406 S.W.3d at 363–64.
      Because the jury was free to determine what testimony it found credible at
trial, given the conflicting evidence presented, we cannot say that the evidence
supporting the jury’s determination of Appellants’ damages is so contrary to the
overwhelming weight of the evidence as to make the judgment clearly wrong and
manifestly unjust. See Golden Eagle Archery, 116 S.W.3d at 761; Nguyen v. Lijun
Zhang, No. 01-12-01162-CV, 2014 WL 4112927, at *10 (Tex. App.—Houston [1st
Dist.] Aug. 21, 2014, no pet) (mem. op.). Accordingly, we overrule Appellants’
three issues.




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                                               Conclusion
        We affirm the judgment of the trial court.




                                                                   KEITH STRETCHER
                                                                   JUSTICE


August 1, 2019
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.




        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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