
                                          NO. 07-11-0132-CV

                                       IN THE COURT OF APPEALS

                                  FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                               PANEL D

                                          SEPTEMBER 29, 2011

                                    ______________________________


                                       JESUS CAVAZOS, APPELLANT

                                                  V.

                        PAY AND SAVE, INC. D/B/A LOWE'S MARKETPLACE, APPELLEE


                                  _________________________________

                           FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;

                    NO. 2010-550,659; HONORABLE WILLIAM C. SOWDER, JUDGE PRESIDING

                                   _______________________________

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

                                          DISSENTING OPINION

      I respectfully dissent.  While I do agree that the partial reporter's record  obligates  us  to
presume that the record supports the trial court's judgment, Richards v. Schion, 969 S.W.2d 131,  133
(Tex.App.--Houston [1st Dist.] 1998, no pet.) (holding that  "[w]hen  an  appellant  appeals  with  a
partial reporter's record but does not provide the list of points as required by rule 34.6(c)(1),  it
creates the presumption that the omitted portions support the trial court's findings"), I  would  not
interpret the Texas Supreme Court's decision in Haygood v. De Escabedo, No. 09-0377, 2011 Tex.  LEXIS
514 (Tex. July 1, 2011), as obligating us to presume that a plaintiff must first prove to a jury  the
amount of medical or health care expenses actually paid or incurred in order to arrive at a  verdict.
 Under the facts of this case, we must conclude that the trial court, after applying § 41.015 of  the
Civil Practice and Remedies Code,[1]  found  that  the  evidence  supported  a  recovery  of  damages
totaling $3,647.75.  In a comparative negligence case, because a court  is  required  to  reduce  the
amount of recoverable damages by a percentage equal to the claimant's percentage  of  responsibility,
and because the jury found Cavazos to be 49% responsible for his own damages, the trial court  should
have entered a judgment awarding Cavazos damages of $1,860.35. Tex. Civ. Prac. &  Rem.  Code  Ann.  §
33.012 (West  2008).   Furthermore,  a  recalculation  of  damages  requires  that  the  trial  court
recalculate prejudgment interest.

                                              Conclusion

       Accordingly, I would  reverse  the  judgment  of  the  trial  court  and  remand  for  further
proceedings consistent with this opinion.



                                          Patrick A. Pirtle
                                                 Justice
-----------------------
[1]Tex. Civ. Prac. & Rem. Code Ann. § 41.015 (West 2008).  The Final Judgment entered  in  this  case
specifically recites that the trial court applied § 41.015.

