Opinion issued June 7, 2018




                                       In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-16-00463-CV
                            ———————————
     ARTURO CASTELAN AND GUSTAVO CASTELAN, Appellants
                                         V.
                        MICHAEL GERARD, Appellee


                   On Appeal from the 269th District Court
                            Harris County, Texas
                      Trial Court Case No. 2013-22182


                          MEMORANDUM OPINION

     Appellant, Gustavo Castelan (“Gustavo”),1 challenges the portion of the trial


1
     Appellant, Arturo Castelan (“Arturo”), also filed a notice of appeal in the instant
     case; however, he has not raised any issues or complaints about the trial court’s
     judgment or made any argument on his own behalf. See TEX. R. APP. P. 38.1(f),
     (h), (i); Canton-Carter v. Baylor College of Med., 271 S.W.3d 928, 931–32 (Tex.
     App.—Houston [14th Dist.] 2008, no pet.). Accordingly, we hold that Arturo has
court’s judgment, rendered after a jury trial in his suit for negligence and gross

negligence against appellee, Michael Gerard, denying Gustavo recovery of past

medical expenses incurred after a car collision when he was a minor. In his sole

issue, Gustavo contends that the trial court erred in granting Gerard a directed

verdict and not submitting a jury question on ratification regarding his past medical

expenses.

      We affirm.

                                    Background

      In his first amended petition, Gustavo alleged that on June 22, 2012, while

he was still a minor, he was injured when Gerard’s car “struck” the car in which he

was riding.2    After he turned eighteen years old, Gustavo sued Gerard for

negligence and gross negligence, seeking damages for, among other things, past

medical expenses incurred while he was still a minor.

      After Gustavo rested his case at trial, Gerard moved for a directed verdict on

Gustavo’s claim for past medical expenses, arguing that he lacked standing to

recover such damages because he was a minor at the time they were incurred and,

therefore, any right to recover such expenses belonged to his parents. The trial


      waived any complaints regarding the trial court’s judgment. See TEX. R. APP. P.
      38.1(f), (h), (i); In re S.B.B., No. 01-11-00610-CV, 2012 WL 6094187, at *1 n.2
      (Tex. App.—Houston [1st Dist.] Dec. 6, 2012, no pet.) (mem. op.); Canton-
      Carter, 271 S.W.3d at 931–32.
2
      Arturo was driving the car.
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court granted the motion and entered a directed verdict, holding that Gustavo could

not recover his past medical expenses. At the jury charge conference, Gustavo

requested and submitted a question to the trial court on the issue of whether he had

ratified the contracts for his past medical expenses once he became an adult, and

the trial court denied his request.3

      The jury found that the negligence of both Arturo and Gerard proximately

caused the collision. It attributed fifty percent of the liability to Arturo and fifty

percent to Gerard. The trial court rendered judgment on the verdict, incorporating

its directed verdict in which it denied Gustavo’s recovery for past medical

expenses incurred while he was a minor.4

      Gustavo filed a Motion to Modify the Judgment or, Alternatively, Motion

for New Trial, asking the trial court to render judgment in his favor for past

medical expenses. Alternatively, he requested that the trial court grant a new trial

to submit to a jury the issue of whether he had ratified the contracts for his past

medical expenses, which were allegedly unpaid at the time of trial, once he became

an adult. Gustavo’s motion was overruled by operation of law.




3
      The record reflects that the trial court intended to, but did not, file Gustavo’s
      proposed question with the clerk, and it is not part of the record.
4
      The judgment also incorporates, among other things, damages amounts stipulated
      to by the parties before trial.
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                                Standard of Review

      A directed verdict is proper if no evidence of probative force raises a fact

issue on the material questions in the suit. Prudential Ins. Co. of Am. v. Fin.

Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000). When reviewing a directed

verdict, we consider all of the the evidence in the light most favorable to the party

against whom the verdict was rendered, and we disregard all evidence and

inferences to the contrary. Qantel Bus. Sys., Inc. v. Custom Controls Co., 761

S.W.2d 302, 303 (Tex. 1988); Mayes v. Stewart, 11 S.W.3d 440, 450 n.4 (Tex.

App.—Houston [14th Dist.] 2000, pet. denied).            If there is no evidence of

probative force on a material, requisite fact, a directed verdict is proper. See

Columbia/HCA of Hous., Inc. v. Tea Cake French Bakery & Tea Room, 8 S.W.3d

18, 22 (Tex. App.—Houston [14th Dist.] 1999, pet. denied).

      A trial court has wide discretion in submitting jury instructions and

questions. Ginn v. NCI Bldg. Sys., Inc., 472 S.W.3d 802, 828 (Tex. App.—

Houston [1st Dist.] 2015, no pet.). A trial court abuses its discretion if it acts in an

arbitrary or unreasonable manner, or if it acts without reference to any guiding

rules or principles. Moss v. Waste Mgmt. of Tex., Inc., 305 S.W.3d 76, 81 (Tex.

App.—Houston [1st Dist.] 2009, pet. denied). An appellate court will not reverse a

judgment for charge error unless the error was harmful in that it “probably caused




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the rendition of an improper judgment” or “probably prevented the appellant from

properly presenting the case to the court of appeals.” TEX. R. APP. P. 44.1(a).

                     Recovery of Medical Expenses by Minor

      In his sole issue, Gustavo argues that, with respect to his past medical

expenses, the trial court erred in granting Gerard a directed verdict and not

submitting his requested jury question on ratification because an injured minor

who brings a lawsuit after attaining the age of majority may recover past medical

expenses.

      Texas courts have long recognized that a minor has a well-defined common

law cause of action to sue for injuries negligently inflicted by others. See e.g., Sax

v. Votteler, 648 S.W.2d 661, 666 (Tex. 1983). This is distinct, however, from his

parents’ rights to recover damages for injuries to their child. Id. Although a minor

may recover damages for pain and suffering, as well as other damages he may

accrue after he reaches the age of majority, a cause of action to recover medical

expenses incurred by a minor child through the date the child attains the age of

majority belongs to the child’s parents. Id. (“Historically, in Texas, the right to

recover for medical costs incurred on behalf of the minor is a cause of action

belonging to the parents, unless such costs are a liability as to the minor’s estate.”).

This is because “the parents of an unemancipated minor child are primarily

responsible for the costs of medical attention furnished to him,” and “in the


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absence of facts which would render the minor personally liable for such expenses,

he has no cause of action to recover them from a third party tort feasor.” Acme

Prods. Co. v. Wenzel, 448 S.W.2d 139, 142 (Tex. Civ. App.—Houston [1st Dist.]

1969, no writ); see also Roth v. Law, 579 S.W.2d 949, 956 (Tex. App.—Corpus

Christi 1979, writ ref’d n.r.e.).

      Gustavo recognizes the principles stated above, but argues that his claim for

past medical expenses incurred when he was a minor constitutes an exception to

established precedent because minors cannot avoid contracts for necessities and he

ratified the contracts for his medical care resulting from the collision when he filed

the lawsuit to recover those expenses after attaining the age of majority. However,

it is well-established that a cause of action for past medical expenses incurred

before a minor attains the age of majority belongs to his parents.5 See, e.g., Sax,

648 S.W.2d at 666. And while he certainly benefited from the medical care

provided, there is no evidence in the record that Gustavo, as opposed to his parents,

entered into a contract to pay for his medical care following the collision. Wenzel,

448 S.W.2d 142 (“[I]n the absence of facts which would render the minor

personally liable for such [medical] expenses, he has no cause of action to recover

them from a third party tort feasor.”); see also Whitten v. Vehicle Removal Corp.,

5
      In support of his argument, Gustavo relies on J&D Towing, LLC v. American
      Alternative Insurance Co., 478 S.W.3d 649 (Tex. 2016). However, this case does
      not involve a minor’s rights to damages at all, much less the specific issue in this
      case.

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56 S.W.3d 293, 312 (Tex. App.—Dallas 2001, pet. denied) (explaining

establishment of third-party beneficiary status predicated on, among other things,

“all presumptions being invoked against liability to the third party”). Further,

Gustavo does not argue that any agreement between his parents for his medical

expenses purported to obligate him for payment or was in some way invalid or in

need of ratification. See Gold’s Gym Franchising LLC v. Brewer, 400 S.W.3d 156,

162 (Tex. App.—Dallas 2013, no pet.) (“[T]here can be no ratification of a

contract by one who is not a party to it unless the original contract purported to be

in the name of, or for, the person alleged to have ratified it.”); Huginnie v. Loyd,

483 S.W.2d 696, 702 (Tex. Civ. App.—Tyler 1972, writ ref’d n.r.e.).

      In the few cases in which an adult has sued for past medical expenses

incurred when he was a minor, the courts have all ultimately held that a suit for

recovery of these expenses still belongs to the parents even after the minor attains

the age of majority.    See Garcia v. Cerda, No. 07-12-00168-CV, 2013 WL

3788509, at *2 (Tex. App.—Amarillo July 15, 2013, no pet.) (mem. op.) (“[T]rial

court acted without reference to any guiding rules or principles when it overruled”

objection to jury question concerning past medical expenses where record “clearly

demonstrate[d]” plaintiff minor “at the time of the accident” and “all of the

medical treatment he received in connection with the accident was rendered while

he was a minor.”); Garza v. Garza, 182 S.W.3d 69, 71 (Tex. App.—San Antonio


                                         7
2005, no pet.) (recognizing plaintiff who brought lawsuit after attaining age of

majority “did not have an existing right to bring a claim for medical expenses

incurred before her eighteenth birthday” because “[t]hat right belonged to her

parents”); see also Hernandez v. Morales, No. Civ. Action No. 7:13-CV-234, 2014

WL 794201, at *3 (S.D. Tex. Feb. 25, 2014) (applying Texas law in rejecting adult

plaintiff’s claim for past medical expenses resulting from injury sustained and

treated as minor because right to recover those expenses belonged to parents).

      Although not binding precedent, the Southern District of Texas’s analysis in

Hernandez is instructive. In that case, the plaintiff argued, as Gustavo does here,

that “her medical care, as a contract for necessities, [was] ‘neither void nor

voidable’; . . . she entered an implied contract by receiving medical treatment;

and . . . she ratifie[d] her parents’ contract for medical treatment.” Hernandez,

2014 WL 794201, at *3. “[I]n effect, [she] argue[d] that she ha[d] accepted

responsibility for these expenses, and should own the claim.” Id. However, the

court rejected her argument because the evidence demonstrated that her parents

had entered into the contract, and she was not a party to the contract.          Id.

(explaining plaintiff could not “ratify a contract to which she was never a party”).

Further, her “new promise to pay the medical bills [did] not create any new

obligation on the part of the medical providers” and was “unenforceable” due to

lack of consideration. Id. at *4.


                                         8
      Here, as with the plaintiff in Hernandez, there is no evidence in the record

that Gustavo, and not his parents, entered into a contract to pay for his medical care

resulting from the collision. As such, he cannot ratify a contract to which he was

never a party. And any cause of action arising from medical expenses incurred

while he was a minor belongs to his parents.

      Accordingly, we hold that the trial court did not err in granting Gerard a

directed verdict on Gustavo’s claim for past medical expenses. We further hold

that the trial court did not err in not submitting a jury question on ratification

regarding his past medical expenses.

      We overrule Gustavo’s sole issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                               Terry Jennings
                                               Justice

Panel consists of Justices Jennings, Massengale, and Caughey.




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