                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00010-CV


PREILLA ATWOOD AND                                                 APPELLANTS
CHELSEY ATWOOD

                                        V.

CHRISTINE PIETROWICZ                                                  APPELLEE


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          FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY

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                        MEMORANDUM OPINION1
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      Appellants Priella Atwood and her daughter Chelsey Atwood (collectively,

the Atwoods) were rear-ended by Appellee Christine Pietrowicz in 2006, an

accident for which Pietrowicz has conceded liability. A jury trial was held on the

issue of damages. The jury awarded the Atwoods damages for physical pain

and mental anguish, medical care expenses, and loss of earning capacity.

      1
       See Tex. R. App. P. 47.4
      Prior to trial, the Atwoods filed with the court a number of affidavits

concerning the cost and necessity of their medical treatment. The Atwoods also

filed a motion in limine requesting that Pietrowicz be prohibited from bringing

certain matters to the jury’s attention ―unless and until such matters have been

first called to the attention of the court, out of the presence and/or hearing of the

jury, and a favorable ruling obtained from the Court as to the admissibility and

relevance of any such matters.‖ The court sustained the Atwoods’ prohibitions

on, among other things, (1) mentioning any insurance covering the Atwoods; (2)

arguing that any damages should be reduced by credits, write-offs or discounts

appearing on the Atwoods’ medical bills; (3) arguing that the Atwoods could not

have been injured because of the lack of damage to the vehicles; and (4) arguing

that the medical services evidenced in the Atwoods’ affidavits were unnecessary

or that their costs were unreasonable.

      On appeal, the Atwoods argue in ten issues that the jury awarded much

less in damages than was established at trial because of Pietrowicz’s counsel’s

repeated violations of the order on the motion in limine; improper arguments that

the Atwoods do not owe their medical bills and that their damages should be

accordingly reduced by adjustments shown in the records; improper questioning

of the Atwoods’ counsel’s honesty; and misrepresentations of the uncontroverted

affidavits of medical care. For the reasons set forth below, we disagree and

uphold the damages awarded at trial.



                                         2
                                   Discussion

Improper Jury Argument

      In their first and second issues, the Atwoods complain that Pietrowicz’s

trial counsel repeatedly violated the motion in limine and made improper

arguments that incurably prejudiced the jury.     Pietrowicz responds that these

complaints were not preserved by objections during trial.

      Normally, to preserve a complaint for appellate review, a party must have

presented to the trial court a timely request, objection, or motion that states the

specific grounds for the desired ruling, if they are not apparent from the context

of the request, objection, or motion. Tex. R. App. P. 33.1(a); see also Tex. R.

Evid. 103(a)(1).   If a party fails to do this, error is not preserved, and the

complaint is waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on

reh’g). However, when an appellant complains of an incurable argument, it is

preserved by a motion for new trial, even without an objection at trial. Phillips v.

Bramlett, 288 S.W.3d 876, 883 (Tex. 2009).

      Incurable argument is rare.     Living Ctrs. of Tex., Inc. v. Penalver, 256

S.W.3d 678, 680 (Tex. 2008). To be incurable, the argument must be of such a

nature, degree, and extent that no instruction from the court or retraction of the

argument could undo its effect. Id. at 680–81. An incurable argument is one that

―strikes at the appearance of and the actual impartiality, equality, and fairness of

justice rendered by courts.‖ Id. at 681.



                                           3
      We first address preservation. The Atwoods did not object at trial to all of

the arguments of which they now complain.2 For those they did object to, all

discussion with the court is off the record.3 Thus, the record fails to reflect the

prerequisite statement of grounds, ruling by the court, and request for instruction



      2
          The two complained-of statements which were not objected to are

          (1)
                         Well, if you look at Arlington Orthopedic, you look at the
                bill, it’s the same thing. It’s $35 for her to go. And if you look
                at the bill down here, it doesn’t owe any of it - - that they wrote
                off a thousand dollars. Okay. And that there are all these
                other reductions in here.
                         So for them to come in here and portray, like, oh, I owe
                all these bills and, you know, look at all that I owe and look at
                the large amounts of this. All right. They are not being honest
                with you and - - open and honest with you, because if you look
                at this stuff, they don’t owe it. All right.
                         They are asking you to compensate them for something
                that they are not even going to pay. All right. That you are
                going to give them money and they are not going to pay these
                folks with the money that you give them. All right.
                         So for them to act like that is what they are going to do,
                that is not the case.

          (2)          And I think you ought to look at the write-off stuff in
                relation to that . . . .
      3
         The statement which was objected to, but on which no ruling is preserved
in the record, is, ―Look at the bills in the case. It looks like she doesn’t owe those
amounts.‖

         The Atwoods also complain of a line of questioning in which Pietrowicz’s
counsel asked Priella Atwood whether she had ever looked at her medical bills
prior to trial. We note that this is not an argument to the jury and that the
Atwoods’ counsel allowed Priella to answer six questions on the subject before
objecting. Further, the Atwoods failed to get a ruling on their objection on the
record.

                                             4
to disregard.   However, some of the statements made by Pietrowicz were

preserved for our review in the Atwoods’ motion for new trial. Those statements

which were preserved, all in Pietrowicz’s closing argument, involved commenting

on the existence of health insurance as a collateral source of payment or arguing

that any damage award be reduced by write-offs or credits.4

      All of these statements are proper remarks on the medical bills submitted

into evidence by the Atwoods. Although they were redacted, the bills clearly

show unredacted ―credits,‖ ―write-offs,‖ and ―adjustments.‖       A party cannot

complain of error when she has allowed the evidence to be admitted. Because

the Atwoods themselves sponsored the evidence of credits, write-offs, and

adjustments through the exhibits they introduced, error cannot be assigned for

commenting on the meaning of their documents in argument. See Magic Chef,

Inc. v. Sibley, 546 S.W.2d 851, 858 (Tex. App.—San Antonio 1977, pet. ref'd)

(holding that it was not improper argument to comment on requests for admission

that were read to the jury without objection).

      In their third issue, the Atwoods complain that these same arguments by

Pietrowicz impugned the honesty of the Atwoods’ attorney.          Attacks on the

integrity of counsel have been found to be ―highly improper and generally


      4
        The three statements which were preserved by the motion for new trial
are the two which were not objected to at trial and the argument to which the
Atwoods did object, but did not obtain a ruling. See supra notes 2–3. The
Atwoods did not preserve in their motion their complaint of the line of questioning
regarding Priella Atwood’s medical bills.

                                          5
considered to be incurable.‖ Circle Y of Yoakum v. Blevins, 826 S.W.2d 753, 758

(Tex. App.—Texarkana 1992, writ denied). Specifically, the Atwoods point to

when Pietrowicz’s counsel said,

              Well, if you look at Arlington Orthopedic, you look at the bill,
      it’s the same thing. It’s $35 for her to go. And if you look at the bill
      down here, it doesn’t owe any of it - - that they wrote off a thousand
      dollars. Okay. And that there are all these other reductions in here.
              So for them to come in here and portray, like, oh, I owe all
      these bills and, you know, look at all that I owe and look at the large
      amounts of this. All right. They are not being honest with you and
      - - open and honest with you, because if you look at this stuff, they
      don’t owe it. All right.
              They are asking you to compensate them for something that
      they are not even going to pay. All right. That you are going to give
      them money and they are not going to pay these folks with the
      money that you give them. All right.
              So for them to act like that is what they are going to do, that is
      not the case.

      We do not understand the above argument to refer to the Atwoods’

counsel, but to the Atwoods themselves. And as discussed above, the Atwoods

were the ones who introduced the evidence that they did not owe the full amount

of the medical bills. Pietrowicz’s counsel was remarking on that evidence and

the Atwoods will not be heard to complain of it now. We overrule the Atwoods’

first, second, and third issues.

Objection at Closing

      In their fourth issue, the Atwoods complain of the following statement

made during Pietrowicz’s closing argument:




                                          6
      I think back during the voir dire, Plaintiff’s Counsel told you that this
      wasn’t a case where they were asking for a lot of money. Well, it
      seems to me that they just asked you for a lot of money. Particularly
      in relation to what kind of accident this was.

      The Atwoods objected ―to the argument that the damages are based on

what kind of accident it was.       They need to be based only on the actual

damages.‖ The court overruled the objection. The Atwoods complain that the

objection was proper because counsel’s statement was in violation of their

motion in limine, which prohibited counsel from ―arguing to the jury or testifying

that Plaintiffs could not have been injured due to the lack of damage or

insubstantial amount of damage to either or both of the vehicles involved in the

collision in question,‖ and that since it was in violation of the motion in limine, it

was an improper argument. Pietrowicz counsel argues that her counsel did not

run afoul of the prohibition because he did not directly mention vehicle damage.

      The statement regarding ―what kind of accident this was‖ does not make

reference to vehicle damage and does not violate the Atwoods’ motion in limine.

Pietrowicz had argued throughout the trial about the lack of severity of the

accident and that such car accidents do not normally cause the types or extent of

injuries complained of. This statement is a proper summary of that argument.

The Atwoods’ objection was properly overruled at trial, and we now overrule their

fourth issue.




                                          7
Uncontroverted Affidavits of Cost and Necessity of Medical Services

      The Atwoods’ fifth through eighth and tenth issues relate to the

uncontroverted affidavits concerning the cost and necessity of medical services

they entered into evidence.

      In their closing argument, the Atwoods stated that the affidavits

―conclusively establish[] that these fees were reasonable at the time and place

that they were -- for the things reflected in them, and that the services were

necessary.‖ [RR 51] Pietrowicz objected that it was an incorrect statement of

the law, referencing Texas Civil Practice and Remedies Code section 18.001. In

their fifth issue, the Atwoods argue that the trial court erred by sustaining this

objection and that by doing so, caused the jury to improperly award them less

than the full amount of their medical costs.

      Also during closing, Pietrowicz argued that the jury should only award the

Atwoods part of the cost of Chelsey’s MRI. Pietrowicz told the jury that Chelsey

had three MRIs performed on the same day, including one on her neck, which he

argued she did not claim was injured in the accident. He told the jury, ―I don’t

think you should consider the third MRI that was done to the neck. Just look at

the other two.‖ The Atwoods claim that the MRI was a single ―three-level‖ MRI,

the cost of which cannot or should not be divided. The Atwoods complain in their

sixth issue that referring to the MRI as three different procedures was an

improper argument that caused the jury to enter a judgment of less than the full

cost of the MRI. Because the jury did not award the full cost of the MRI, the

                                         8
Atwoods argue in their seventh and eighth issues that the jury’s damage award is

contrary to the conclusive evidence as a matter of law. The Atwoods further

argue in issue ten that the jury’s failure to award Priella all of the medical costs

for which she submitted uncontroverted affidavits is contrary to the conclusive

evidence as a matter of law.

      Section 18.001 affidavits concerning the cost and necessity of services

rendered are ―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) (Vernon 2008).                  Even when

uncontroverted, section 18.001 affidavits are not conclusive evidence. Hong v.

Bennett, 209 S.W.3d 795, 800 (Tex. App.—Fort Worth 2006, no pet.) (―An

uncontroverted section 18.001(b) affidavit provides legally sufficient—but not

conclusive—evidence to support a jury’s finding that the amount charged for a

service was reasonable and necessary.‖) (emphasis added).           Section 18.001

affidavits do not establish that the costs were caused by the defendant’s actions

or that the plaintiffs are entitled to those costs as a matter of law.      Sloan v.

Molandes, 32 S.W.3d 745, 752 (Tex. App.—Beaumont 2000, no pet.);

Beauchamp v. Hambrick, 901 S.W.2d 747, 749 (Tex. App.—Eastland 1995, no

writ). It is an evidentiary statute allowing for the admissibility of affidavits that

would otherwise be considered hearsay. Hong, 209 S.W.3d at 800; Beauchamp,

901 S.W.2d at 749.



                                         9
      When causation is contested, such as when there is a dispute over
      the seriousness of an accident that allegedly caused the medical
      expenses, the jury is not bound to award the damages set forth in an
      uncontroverted affidavit under section 18.001, but is entitled to
      answer the damages issue as it deems appropriate.

Gutierrez v. Martinez, No. 01-07-00363-CV, 2008 WL 5392023, at *9 (Tex.

App.—Houston [1st Dist.] Dec. 19, 2008, no pet.) (mem. op.).

      The Atwoods’ statement that the affidavits were conclusive evidence was

properly objected to as being a misstatement of the law. The section 18.001

affidavits do not conclusively establish the Atwoods’ entitlement to those

damages as a matter of law. See, e.g., Sloan, 32 S.W.3d at 752 (upholding jury

award of $21,600 where medical expenses were established by affidavit to be

$107,543.25). The Atwoods were still required to demonstrate that the services

were sought as a result of Pietrowicz’s actions. Id.

      Both Priella and Chelsey suffered injuries after the accident that were

unrelated to the accident and that were listed in the medical bills submitted into

evidence. Their counsel noted at trial that not all of the charges in the affidavits

were related to the car accident. In closing argument, he stated, ―[T]he affidavit

itself says that the attached records show there is $13,000-plus in necessary and

reasonable charges, but . . . the only ones that we are seeking here are . . . for

the MRI, which totals $8,873.‖ The jury was within its discretion to evaluate the

evidence and make judgment as to which of the medical expenses were related

to the accident and which were not. See Gutierrez, 2008 WL 5392023, at *9.



                                        10
       Further, during trial, the Atwoods did not object to Pietrowicz’s

characterization of the MRI as three separate MRIs. The record does not reflect

whether the Atwoods argued to the jury during their own closing that the MRI was

one three-level imaging, not three separate services. And the Atwoods did not

object when Pietrowicz referred to the MRI as ―three MRIs‖ during cross-

examination of Chelsey Atwood,5 or attempt on redirect to have Chelsey testify

that it was one procedure. The Atwoods’ presented no other testimony on the

issue, and the bill for the MRI attached to the affidavit breaks it down into three

items, each with its own code, quantity, and charge. The evidence is not clear

that the MRI was one procedure, and the jury was free to make that

determination and award the costs only on those procedures attributable to the

accident.

       Based on this evidence in the record, we cannot say that it was error for

the jury to award less than the full amount of medical costs evidenced in the

affidavits.   We overrule the Atwoods’ fifth, sixth, seventh, eighth, and tenth

issues.

Physical Impairment and Loss of Earning Capacity

       In their ninth issue, the Atwoods argue that the jury’s responses to

questions in the jury charge are inconsistent and, therefore, require a new trial.


       5
        When questioned about the ―three MRIs,‖ Chelsey responded, ―They did
one long one. They didn’t do three little ones. They did one big one . . . . Three
different ones.‖

                                        11
Question two of the jury charge asked the jury, ―What sum of money, if paid now

in cash, would fairly and reasonably compensate Priella Atwood for her injuries, if

any, that resulted from the occurrence in question?‖ The charge broke out the

award as follows:

      a. Physical pain and mental anguish sustained in the past;

      b. Physical pain and mental anguish that, in reasonable probability,
         Priella Atwood will sustain in the future;

      c. Physical impairment sustained in the past;

      d. Physical impairment that, in reasonable probability Priella Atwood
         would sustain in the future;

      e. Medical care expenses sustained in the past; and

      f. Loss of earning capacity sustained in the past.

      The Atwoods complain on appeal that the jury’s answer for part (c)

(physical impairment sustained in the past) of zero dollars and the jury’s answer

for part (f) (loss of earning capacity sustained in the past) of $2,098.40 are

inconsistent. The Atwoods argue that Priella’s lost earning capacity could only

have been due to her physical impairment and thus, because the jury found that

Priella had suffered lost earning capacity, they should have awarded her

something for her past physical impairment.

      Physical impairment and loss of earning capacity are not the same thing.

Loss of earning capacity is the diminution in the plaintiff’s ability to earn and

―do[es] not have to be based on any specific degree of physical impairment, but

can be based on a composite of all of the factors affecting earning capacity.‖ Tri-

                                        12
State Motor Transit Co. v. Nicar, 765 S.W.2d 486, 492 (Tex. App.—Houston

[14th Dist.] 1989, no writ). It includes her ability to ―get and hold a job, or [her]

capacity for duration, consistency or efficiency of work . . . .‖ Rendon v. Avance,

67 S.W.3d 303, 312–13 (Tex. App. —Fort Worth 2001, no pet.) (quoting Springer

v. Baggs, 500 S.W.2d 541, 545 (Tex. Civ. App.—Texarkana 1973, writ ref'd

n.r.e.)).

       Physical impairment ―extends beyond loss of earning capacity and beyond

any pain and suffering, to the extent that it produces a separate loss that is

substantial or extremely disabling.‖ Dawson v. Briggs, 107 S.W.3d 739, 752

(Tex. App.—Fort Worth 2003, no pet.). It can include inability to participate in

hobbies, completely apart from any inability to perform work. Patlyek v. Brittain,

149 S.W.3d 781, 787 (Tex. App.—Austin 2004, pet. denied) (―By focusing on

activities unrelated to work, a reviewing court can distinguish losses comprising

physical impairment from those comprising lost wages or earning capacity.‖)

This court has previously noted,

       To receive damages for physical impairment, the injured party must
       prove that the effect of his physical impairment extends beyond any
       impediment to his earning capacity and beyond any pain and
       suffering, to the extent that it produces a separate and distinct loss
       that is substantial and for which he should be compensated.
       Therefore, even proof that one is entitled to compensatory damages
       for pain and suffering, or for lost wages, does not automatically
       entitle one to compensation for physical impairment.

Dawson, 107 S.W.3d at 752 (internal citations omitted).




                                         13
      Damages for physical impairment and for loss of earning capacity

compensate the plaintiff for different losses.     The jury’s finding that Priella

Atwood did not suffer physical impairment to a degree for which she should be

compensated is therefore not inconsistent with their award of lost earning

capacity. The Atwoods’ ninth issue is overruled.

                                  Conclusion

      Having overruled each of the Atwoods’ issues, we affirm the trial court’s

judgment.

                                                   LEE GABRIEL
                                                   JUSTICE

PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.

DELIVERED: October 28, 2010




                                       14
