                                   NO. 07-04-0468-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL D

                                   JULY 20, 2006
                          ______________________________

                         EXCEL CORPORATION, APPELLANT

                                            V.

                   SHIRLEY MCDONALD AND JIMMY MCDONALD
              INDIVIDUALLY AND AS BENEFICIARIES OF THE ESTATE
                       OF JASON MCDONALD, APPELLEES
                      _________________________________

             FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;

          NO. 2003-523-103; HONORABLE MACKEY K. HANCOCK, JUDGE
                      _______________________________


Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.


                                        OPINION


       Excel Corporation appeals from a judgment in favor of Shirley McDonald for

damages suffered from the death of her son, Jason McDonald. We will reverse the

judgment and remand the cause for a new trial.


       Jason, age 19, was killed when the all-terrain vehicle he was driving collided with

an automobile owned by Excel and driven by one of its employees. The collision occurred

at the intersection of two county roads in Castro County. At the trial of the wrongful death
and survival action his parents brought against Excel, the jury found the collision resulted

from the negligence of both drivers and attributed 55% fault to Excel’s driver and 45% to

Jason. In its responses to the damages questions, the jury found Shirley McDonald1 had

suffered past and future mental anguish damages totaling $300,000; zero damages for

past and future loss of companionship and society; and pecuniary loss damages of

$150,000 in the past and $50,000 in the future. Excel asked the court to disregard the

jury’s finding of $150,000 damages for past pecuniary loss. The court denied Excel’s

motion and rendered judgment on the jury’s verdict.


       Excel’s appeal presents the single issue whether the trial court erred by denying its

motion to disregard the jury finding or, restated, whether legally sufficient evidence

supported the jury’s finding that Shirley McDonald sustained past pecuniary loss in the

amount of $150,000. Its brief asks that we render judgment eliminating the past pecuniary

loss element of the recovery and the prejudgment interest on that amount. TEX . R. APP .

P. 43.2(c).


       Excel’s brief succinctly summarizes the evidence and its argument as follows: “The

evidence shows that Jason McDonald was a fine young man, who had graduated from high

school and started college, was living with his mother, was a loving and attentive son, and

was protective and supportive of his mother. He worked part-time while attending school,

worked in the summer, made some financial contributions to his mother, mowed the lawn,

did some house maintenance, and did domestic tasks for his mother. There is evidence


       1
     Shirley McDonald and Jason’s father are divorced. The jury awarded him no
damages. He is not a party to this appeal.

                                             2
which would support some amount of pecuniary loss from the date of Jason’s death, July

10, 2003, to the date of the verdict, July 1, 2004, but the finding of $150,000.00 is pure

fiction.” (underlining in original).


       Rule of Civil Procedure 301 authorizes the trial court, on motion and notice, to

disregard a jury finding on a question that has no support in the evidence. We review

Excel’s appellate point complaining of the denial of its motion to disregard the jury’s finding

as a no-evidence or legal insufficiency issue. State Parks & Wildlife Dep’t v. Tidwell, 735

S.W.2d 629 (Tex.App.–Texarkana 1987, no writ). If the jury’s finding was supported by

legally insufficient evidence, the trial court erred by denying Excel’s motion. If the trial court

so erred, its error without question led to its rendition of an improper judgment and thus

requires reversal. TEX . R. APP . P. 44.1(a).


       A legal sufficiency challenge will be sustained when, inter alia, the evidence offered

to prove a vital fact is no more than a mere scintilla. Merrell Dow Pharm., Inc. v. Havner,

953 S.W.2d 706, 711 (Tex. 1997). More than a scintilla of evidence exists when the

evidence rises to a level such that reasonable and fair-minded people could differ in their

conclusions. Id.; Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). We will view

the evidence in a light that tends to support the jury's finding and disregard all evidence

and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001);

Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex. 1992).


       The jury charge defined pecuniary loss as “the loss of the care, maintenance,

support, services, advice, counsel, and reasonable contributions of a pecuniary value,


                                                3
excluding loss of inheritance, that Shirley McDonald would, in reasonable probability, have

received from Jason McDonald had he lived.”2         As noted, the jury found $150,000

pecuniary loss damages “sustained in the past,” and $50,000 “in reasonable probability will

be sustained in the future.”


       Jason was the youngest of McDonald’s three sons. Evidence showed Jason had

a close relationship with his mother. One of his friends testified that Jason would “drop

everything” to help his mother when she needed help. Jason had helped his mother

financially. His employer Olan Moore and other witnesses testified that Jason commonly

gave his paychecks to his mother.3 From the time Jason was twelve or thirteen years old,

he had worked for Moore during the summers. At the time of his death, Jason was making

$8 or $8.50 an hour, his take-home pay ranging from $220 to $300 a week, depending on

the hours worked.


       As Excel’s summary of the evidence states, Jason also willingly and routinely helped

his mother with household chores. He performed household maintenance and repair,

cleaning, and lawn mowing, and put up the Christmas tree and lights.


       As Excel also acknowledges, the evidence supports a finding that Shirley McDonald

suffered some pecuniary loss during the nearly one-year period from her son’s death to the



       2
        See Moore v. Lillebo, 722 S.W.2d 683, 687 (Tex. 1986) (so defining pecuniary loss
for parent of adult child); Texas Pattern Jury Charges–General Negligence, PJC 9.5
(2003).
       3
       McDonald’s cross-examination testimony indicated that Jason had not given her
his paycheck since October of 2002, when she obtained a better-paying job.

                                            4
date of the verdict. That is sufficient, McDonald argues, to defeat Excel’s no-evidence

challenge to the jury’s finding that the loss amounted to $150,000. McDonald contends

that proof of pecuniary loss in the wrongful death context is not susceptible “to the kind of

pencil and paper calculation which might be used . . . in a commercial case.”4 She cites

John Deere Co. v. May, 773 S.W.2d 369 (Tex.App.–Waco 1989, writ denied), in which the

court upheld an award of pecuniary loss damages to a minor daughter for the death of her

father despite the absence of testimony placing a specific monetary value on his parental

services. Id. at 379-80.


       The requirement that the amount of damage awards be supported by evidence is

not limited to commercial cases. See, e.g., Saenz v. Fidelity & Guar. Ins. Underwriters,

925 S.W.2d 607, 614 (Tex. 1996) (“Not only must there be evidence of the existence of

compensable mental anguish, there must also be some evidence to justify the amount

awarded.”) There can be little doubt that such a requirement applies to amounts awarded

for the pecuniary loss element of wrongful death damages. See Moore, 722 S.W.2d at 687

(pecuniary loss damages represent “direct economic losses”); cf. C & H Nationwide, Inc.

v. Thompson, 903 S.W.2d 315, 324 (Tex. 1994) (contrasting proof required for loss of

inheritance damages with that for non-economic damages).


       Viewing the evidence in the light most favorable to the verdict, the jury could have

determined that Jason, in reasonable probability, would have contributed his paychecks

       4
       Excel’s citations include a number of lost profits and condemnation cases. See,
e.g., Holt Atherton Industries, Inc. v. Heine, 835 S.W.2d 80 (Tex. 1992) (lost profits);
Callejo v. Brazos Electric Power Cooperative, Inc., 755 S.W.2d 73 (Tex. 1988)
(condemnation).

                                             5
to his mother. But even if he had continued to earn as much as $300 a week until the date

of the verdict5 and given it all to his mother, his contribution would not have totaled more

than $15,000.


       The jurors could apply their knowledge and experience to estimate the value of the

household services Jason rendered his mother, without proof of their value. Missouri-

Kansas-Texas R. R. Co. v. Pierce, 519 S.W.2d 157, 160 (Tex.Civ.App.–Austin 1975, writ

ref’d n.r.e.); Arando v. Higgins, 220 S.W.2d 291 (Tex.Civ.App.–El Paso 1949, writ ref’d

n.r.e.). A jury’s discretion in doing so is not unlimited, however, and must be based on the

evidence adduced. Pierce, 519 S.W.2d at 160. The evidence shows that Jason was

extraordinarily diligent in helping his mother around the house but no evidence suggests

that the nature or value of his services was out of the ordinary. No reasonable view of the

evidence concerning Jason’s services to his mother supports an estimated value even

approaching $150,000 for the period before the verdict. We must agree with Excel that no

evidence supports the jury’s finding that McDonald suffered direct economic losses in the

past of $150,000. We conclude the trial court erred by denying Excel’s motion to disregard

the finding, and we sustain Excel’s issue on appeal.


       When we reverse a trial court’s judgment, normally it is our duty under Rule of

Appellate Procedure 43.3 to render the judgment the trial court should have rendered.

Tex. R. App. P. 43.3. As noted, Excel’s brief prays only for rendition, asking that we render



       5
       His employer testified Jason sometimes worked part-time during the school year.
There is no evidence to suggest Jason intended to continue full-time work after the
summer. All the evidence is that he intended to resume his college classes in the fall.

                                             6
judgment eliminating the past pecuniary loss element of the recovery and the prejudgment

interest on that amount. Excel acknowledges our authority under Rule 43.3(b) to remand

for a new trial when the interests of justice require it. Excel argues against remand,

pointing to the supreme court’s discussion of its similar authority under Rule 60.3 in Kerr-

McGee Corp. v. Helton, 133 S.W.3d 245, 258-60 (Tex. 2004); TEX . R. APP . P. 43.3, 60.3.

It contends remand is no more appropriate here than in Helton. We disagree.


       Helton is a natural gas lease drainage case. The plaintiff there relied on an expert

witness to provide the only evidence of the amount of damages. The supreme court found

the expert’s testimony on that subject was unreliable and constituted no evidence.

Concluding the plaintiff thus had failed to present any competent evidence of the amount

of his damages, the court reversed the lower courts, and rendered a take-nothing

judgment. Helton, 133 S.W.3d at 247.


       Here, by contrast, Excel acknowledges that McDonald presented evidence

supporting some award for past pecuniary loss. Under these circumstances, remand is

appropriate. Because liability was contested at trial, we may not remand only for retrial of

the damages. TEX . R. APP . P. 44.1(b); Estrada v. Dillon, 44 S.W.3d 558, 562 (Tex. 2001)

(per curiam). Accordingly, the trial court’s judgment is reversed and the cause is remanded

for a new trial.



                                          James T. Campbell
                                              Justice




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