      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-05-00214-CV



                                       Lu Ann Nye, Appellant

                                                   v.

                                     Millicent Buntin, Appellee


  FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT
     NO. 00-555-C26, HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDING



                              MEMORANDUM OPINION


                Lu Ann Nye appeals from a judgment awarding her $250 for lost earnings in

connection with personal injuries arising from an automobile collision. She complains (1) that the

district court erred by failing to admit her medical cost affidavits into evidence, and (2) that the

jury’s damage award of only $250 was not supported by legally or factually sufficient evidence and

was manifestly unjust. We affirm.

                At about 7 a.m. on November 11, 1998, Nye’s pickup was rear-ended by a sport-

utility vehicle driven by Millicent Buntin. The parties differed on the relative movement of the

vehicles at the time of the collision. Nye testified that she was stopped as the fourth or fifth in a line

of cars waiting at a stoplight when she was hit. Buntin testified that the cars were traveling at least

forty-five miles per hour when Nye braked unexpectedly. The police report reflected that the

accident occurred two-tenths of a mile from the intersection. Buntin testified that her brakes worked
at first, but then failed. Her front bumper went under the rear bumper of Nye’s pickup. After the

collision, the bed of the pickup remained about two inches displaced from its previous alignment.

Nye’s pickup was driven away from the accident.

               Nye testified that the force of the collision caused her to hit her head on the back of

the pickup cab (six to eight inches from her normal driving position), leaving a knot on her head.

She missed a day of work, which cost her $226. Nye testified that she had severe headaches for

about ten months that affected her thinking. She claimed she also had pain in her neck, shoulders

and upper back, lower back, right hip, and right knee.

               There was evidence of other pain-inducing incidents in Nye’s life. She had been

sideswiped on an icy freeway in 1994, and claimed many of the same types of injuries she claims

in this case. She testified that she believed that the 1994 injuries made her more susceptible to

muscle injuries. Buntin presented evidence that Nye was receiving treatment for pain in 1994 and

1995 and that, in 1996, Nye had tests for pain in her lower back and right hip and leg. Nye pulled

muscles in her back when moving her belongings to a new house in 1997. Buntin also presented

evidence that, in 1997, Nye sought treatment for a twisted right knee and a broken elbow. Nye

testified that, by 1998, she was mostly pain-free from the 1994 injuries, although she occasionally

pulled muscles that she treated by taking pain medication. Other evidence showed Nye reported

chronic lower back pain at an examination in April 1998, and that she sought pain medication for

a pinched nerve in her back on November 2, 1998—nine days before the collision with Buntin.

After the accident, she twice injured muscles in her back while moving patients as part of her job as

an x-ray technician.


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               Nye testified regarding the impact of injuries from the collision on her life. She was

unable to do simple household chores for months after the accident. She did not make as much

money from her cleaning business (which she had in addition to her x-ray technician work) because

she had to hire outside workers. She missed attending many of her daughter’s activities during her

senior year of 1998-99. Nye’s daughter testified that Nye cried a lot from the pain and depression

and that unpaid medical bills caused collectors to harass them. The collective pressure strained their

previously close relationship.

               Nye testified that she still suffers some from the injuries she incurred in the wreck.

She testified that her right hip and knee bother her. She also testified that she paid a chiropractor

$3000 for treatments and paid $2452 for an electrical pain relief device, massage therapy, and the

installation of a jacuzzi tub that she uses twice a day to relieve stiffness and aches. Nye attempted

to introduce cost affidavits reflecting $14,562.92 in medical costs associated with treatment for her

complaints pursuant to Texas Civil Practice and Remedies Code Annotated section 18.001 (West

1997). However, Nye failed to serve these affidavits timely under section 18.001(d) and the trial

court did not admit them into evidence. See id. § 18.001(d).

               The jury found that Buntin’s negligence caused the accident and awarded Nye $250

for lost income. The jury found that Nye suffered no damage for future lost income or for past and

future physical pain, mental anguish, physical impairment, and medical care.

               Although Nye has several points on appeal, her complaints are two-fold. She

complains that the medical cost affidavits excluded by the trial court because they were not timely

served on Buntin should have been admitted because the lateness was harmless. She also contends


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that the evidence is legally and factually insufficient to support the jury’s failure to find that she

suffered damages beyond $250, resulting in an unjust verdict.

                We review a trial court’s decision on the admission of evidence for an abuse of

discretion. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998); Taylor v.

Texas Dep’t of Protective & Regulatory Servs., 160 S.W.3d 641, 652 (Tex. App.—Austin 2005, pet.

denied). A trial court abuses its discretion when it rules without regard for any guiding rules or

principles. City of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex.1995). An appellate court

must uphold the trial court’s evidentiary ruling if there is any legitimate basis for the ruling.

Malone, 972 S.W.2d at 43 (citing State Bar of Texas v. Evans, 774 S.W.2d 656, 658 n.5 (Tex.

1989)). We will not reverse a trial court for an erroneous evidentiary ruling unless the error probably

caused the rendition of an improper judgment. Id.; Tex. R. App. P. 44.1(a).

                Nye’s medical cost affidavits were excluded because they were served on Buntin after

the statutory deadline. Civil practice and remedies code section 18.001(d) requires that “[t]he party

offering the affidavit in evidence or the party’s attorney must file the affidavit with the clerk of the

court and serve a copy of the affidavit on each other party to the case at least 30 days before the day

on which evidence is first presented at the trial of the case.” Tex. Civ. Prac. & Rem. Code Ann.

§ 18.001(d). Although Nye filed her affidavits with the clerk’s office on August 27, 2004 (more than

thirty days before trial), she did not serve them on Buntin until September 7, 2004 (within thirty days

of trial). After receiving the cost affidavits on September 7, Buntin filed and served an affidavit

controverting Nye’s cost affidavits on September 13, 2004. Evidence was first presented at trial on




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September 28, 2004. Nye concedes that she did not meet the statutory deadline for service under

section 18.001(d). See id.

               In points of error two and eleven, Nye argues that the trial court should not have

excluded the cost affidavits because the purpose of the statute’s thirty-day service deadline was

served. She contends that the purpose is to give the defendant an adequate opportunity to respond

before trial. Because Buntin filed an affidavit controverting the cost affidavits on September 13,

2004—actually within the statutory timeframe for such responsive affidavits—Nye contends that her

tardiness in serving the cost affidavits did not harm Buntin. Nye also contends that Buntin’s timely

filing and service of the controverting affidavit constituted a waiver of the right to challenge the

admissibility of the cost affidavits on timeliness grounds. Accordingly, Nye argues, the district court

erred by excluding her affidavits.

               The district court did not abuse its discretion by excluding the cost affidavits. The

Legislature set out the deadline for service of cost affidavits in mandatory language. See id. While

exclusion is not expressly the only potential consequence of noncompliance, it is a reasonable

sanction because of the requirement that an affidavit “must” be served timely. The fact that Buntin’s

controverting affidavit was timely filed does not cure the untimeliness of the service of Nye’s

affidavits. Nor does the fact that the controverting affidavit was filed prove that Buntin was not

harmed by the late service of Nye’s cost affidavits. We find no support for the proposition that the

timely filing of controverting affidavits waives the right to contest the admission of untimely filed

cost affidavits. The trial court did not act without regard to guiding rules and principles in

concluding that Nye’s failure to comply with the statute rendered the affidavits inadmissible to prove


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reasonableness and necessity. See Rodriguez-Narrera v. Ridinger, 19 S.W.3d 531, 533 (Tex.

App.—Fort Worth 2000, no pet.). We overrule points two and eleven.

               In point of error three, Nye contends that her cost affidavits should not have been

excluded because the service was late due to the “virtual last-minute cancellation of the pretrial

conference.” While the cancellation of the pretrial conference may have thwarted her intended

personal service of the documents at the hearing, neither Nye’s brief nor the record explains why the

cancellation of the pretrial conference delayed the service of documents by some other method for

more than a week. The cancellation of the pretrial conference does not excuse the failure to comply

with section 18.001(d). Therefore, it does not make the exclusion of the untimely cost affidavits an

abuse of discretion. We overrule point three.

               By points of error eight and nine, Nye argues that the district court erred by failing

to reconsider and reverse the exclusion of the cost affidavits because Buntin’s controverting affidavit

proof was inadequate. By points of error ten and fourteen, she contends that the cost affidavits

should have been admitted when it became clear that the evidence at trial was about to close without

qualified proof rebutting her cost affidavits. Nye argues that the inadequacy of the controverting

affidavit to rebut her unadmitted cost affidavits should result in the admission of her affidavits. See

Tex. Civ. Prac. & Rem. Code Ann. § 18.001(f) (West 1997). The rule, of course, cannot work this

way. Neither the cost affidavits nor the controverting affidavit were admitted, so any inadequacies

in the controverting affidavit are immaterial. Even if the mere mention of the controverting affidavit

somehow affected the jury, any inadequacy of the controverting affidavit does not alter the tardy




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service of the cost affidavits or the propriety of their exclusion and cause their admission to be

mandatory. We overrule points eight, nine, ten, and fourteen.

               By point of error seven, Nye reiterates her previous arguments concerning the

exclusion of the cost affidavits and the inadequacy of the controverting affidavit and contends that

the trial court erred by overruling her motion for mistrial based on those assertions. We review a

trial court’s denial of a mistrial under an abuse of discretion standard. Lewis v. United Parcel Serv.,

Inc., 175 S.W.3d 811, 815 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). Nye moved for a

mistrial because she was not able to examine Dr. Bill Turpin, Buntin’s affiant, in court. Dr. Turpin

was designated as a witness in 2001 but never deposed. Buntin’s counsel represented at trial without

contradiction that Dr. Turpin was unable to attend the trial because he suffered a brain hemorrhage

the day before he was to testify. Most critical to the merits of the motion, Dr. Turpin’s controverting

affidavit was not admitted into evidence. There was no error by the court to correct by declaring a

mistrial. We overrule point seven.

               By points of error twelve and thirteen, Nye contends that the trial court erred by not

admitting the cost affidavits for the limited purpose of showing the genuineness of her pain and

suffering and supporting the credibility of her complaints. An appellate court must uphold the trial

court’s evidentiary ruling if there is any legitimate basis for the ruling. Malone, 972 S.W.2d at 43;

Evans, 774 S.W.2d at 658 n.5. Even if Nye offered the affidavits for the limited purpose of

bolstering her testimony, the affidavits are hearsay.1 Nye’s argument that the affidavits support the


       1
         Section 18.001 makes such hearsay affidavits admissible if a litigant complies with its
procedures. See Tex. Civ. Prac. & Rem. Code Ann. § 18.001 (West 1997); see also Beauchamp v.
Hambrick, 901 S.W.2d 747, 749 (Tex. App.—Eastland 1995, no writ). Absent compliance with the

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credibility of evidence that she suffered because of this accident depends on the jury’s acceptance

of the truth of the statements that the treatments were reasonable and necessary. Thus, the affidavits

are out-of-court statements offered for the truth of the matter asserted and are inadmissible. See Tex.

R. Evid. 801(d), 802. There is no showing that the cost affidavits are admissible despite their

hearsay nature aside from their use as cost affidavits under section 18.001. The district court did not

err by excluding them from evidence as support for Nye’s testimony about her pain and suffering.

We overrule points twelve and thirteen.

               The overruling of these points requires that we overrule Nye’s fourth point of error,

by which she urges generally that excluding the cost affidavit proof, rendering judgment on the

evidence admitted, and overruling her motion for new trial was error. There was no error in

excluding the evidence. Therefore, rendering judgment without the cost affidavits as part of the

record and overruling her motion for new trial based on the exclusion of the affidavits was not error.

               By points of error five and six, Nye challenges the legal and factual sufficiency of the

evidence to support the jury’s verdict. She contends that the $250 award is against the great weight

and preponderance of the evidence and manifestly wrong and unjust. She argues that the verdict that

the $250 award is not supported by any evidence that she was not injured and damaged, and is

instead contrary to the overwhelming weight of the evidence.

               Parties attacking the legal sufficiency of an adverse finding on an issue on which they

have the burden of proof must further demonstrate that the evidence conclusively established all vital



timeliness section 18.001(d), such affidavits are hearsay and must qualify under an exception to the
hearsay rule to be admissible. See Tex. R. Evid. 801-04.

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facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). We

examine the record for evidence supporting the finding that reasonable jurors could believe,

disregarding all contrary evidence that reasonable jurors could ignore. City of Keller v. Wilson, 168

S.W.3d 802, 807 (Tex. 2005). If the proposition contrary to the verdict is established as a matter of

law, we must render judgment for that proposition. Dow, 46 S.W.3d at 241.

               If a jury’s verdict is so against the great weight and preponderance of the evidence

as to be manifestly unjust, we must reverse the judgment. See In re King’s Estate, 244 S.W.2d 660,

661 (Tex. 1951). A jury may not ignore undisputed facts and arbitrarily fix an amount of damages

that is unfair or unjust. Horton v. Denny’s, Inc., 128 S.W.3d 256, 260 (Tex. App.—Tyler 2003, pet.

denied). In reviewing a factual sufficiency point, we must consider all of the evidence in the record.

See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). We cannot set aside a judgment on appeal

merely because this Court would have weighed the evidence differently or reached another

conclusion, but only if it is so against the great weight and preponderance of the evidence to be

manifestly wrong and unjust. See Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex.

1988).

               Nye’s contention that the collision caused her immediate and lasting injuries underlies

her damage claims. She contends that the jury should have awarded her damages for past and future

physical pain and mental anguish, physical impairment, and medical care. She claims that her

pickup’s bed was twisted by the force of the accident, demonstrating that a significant force hit her.

She argues that, although she had suffered similar injuries before the collision at issue and took

prescription pain medication intermittently, she was pain-free before the accident. She testified that,


                                                  9
within the day after the collision, she had a lump on her head from hitting it on the back window,

tightness in her shoulders, and pain in her neck, lower back, right hip, and right knee. She testified

that, for the next ten months, she had severe headaches that interfered with her ability to think. She

eventually sought a neurologist’s help in diagnosing the cause, but an MRI did not reveal a source

for her pain. Some pain-killing drugs were ineffective. Others, taken by pill and injection, reduced

the pain but did not eliminate it. She used an electrical pain control device. By the time of trial,

some six years after the collision, she testified that, although she was mostly recovered, she still had

joint and back pain and tight shoulder muscles.

                Buntin contends that sufficient evidence supports the jury’s refusal to award damages.

She relies on evidence from the scene, Nye’s previous and subsequent injuries, and the subjective

nature of the evidence supporting Nye’s claim. She points out that Nye did not report injuries at the

scene and was not transported by emergency services to a hospital. She refers to the police report

of minimal damage to the vehicles and the fact that Nye’s truck was driven, not towed, from the

scene. Buntin relies on Nye’s testimony about her pre-collision pain and impairment in the areas she

complains were injured in the collision with Buntin—especially the complaints of pain and

impairment arising from the 1994 collision. Buntin presented testimony and evidence from doctors

who treated Nye for similar injuries suffered in the 1994 collision. Buntin also refers to Nye’s

admission of post-accident injuries arising from other sources.

                While a jury cannot ignore objective evidence of injury, it may reject subjective

claims of pain. Gonzalez v. Wal-Mart Stores, Inc., 143 S.W.3d 118, 123 (Tex. App.—San Antonio




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2004, no pet.). The jury may also weigh testimony regarding previous or subsequent injury and its

effect on the complaining party. Id.

                The jury had ample testimony from Nye regarding the pain she suffered both before

and after the accident. The jury received substantial evidence of previous and subsequent injuries.

In reaching a verdict awarding nothing on these measures of damages, the jury made credibility

determinations that we cannot look behind or overturn. There is no showing that the jury was biased

or prejudiced. The record contains more than a scintilla of evidence favoring the verdict. The

verdict is not against the great weight and preponderance of the evidence. We overrule points of

error five and six.

                By her remaining points of error, Nye contends that the errors asserted in her brief

independently and cumulatively require the reversal of this judgment. Having found no error when

considering Nye’s other points of error, we overrule Nye’s points of error one and fifteen.

                We affirm the judgment.




                                              G. Alan Waldrop, Justice

Before Justices B. A. Smith, Puryear and Waldrop

Affirmed

Filed: August 11, 2006




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