                                   NO. 12-12-00232-CV

                           IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

JANIE MANNING,                                    §      APPEAL FROM THE 217TH
APPELLANT/CROSS-APPELLEE

V.                                                §      JUDICIAL DISTRICT COURT

BRYAN GOLDEN AND GOLDEN
RESTORATION AND FLOOR CARE,
APPELLEES/CROSS-APPELLANTS,                       §      ANGELINA COUNTY, TEXAS

                               MEMORANDUM OPINION
       Janie Manning appeals the judgment of the trial court awarding her $67,152.61. In four
issues, she challenges the factual sufficiency of the evidence supporting the jury’s verdict on
various elements of damages. We affirm.


                                           BACKGROUND
       Manning and Bryan Golden were involved in an automobile collision. Manning filed suit
against Golden and Golden Restoration and Floor Care. At trial, the parties disputed the events
that brought about the collision, although Golden ultimately stipulated that he was negligent and
caused the crash. The trial primarily concerned Manning’s damages.
       As a result of the accident, Manning suffered injuries, including broken ribs, a punctured
lung and pneumothorax requiring the insertion of a chest tube, a broken nose, and facial
lacerations, as well as bruises and contusions over large portions of her body. She also had pain
in her left shoulder. Her injuries required a seven day stay at the hospital.
       After leaving the hospital, Manning went to Dr. Ton Ha, a chiropractor in Houston, for
treatment. Dr. Ha saw Manning for approximately ten sessions and treated pain in Manning’s
neck and back with moist heat, electrical stimulation, ultrasound, and massage. In addition, he
instructed her to perform stretches and exercises for her shoulder. Manning also went to Dr. Ben
Echols, who conducted an MRI on her left shoulder, and was concerned that Manning might have
an injury to her labrum. Based on the results, Dr. Echols referred Manning to Dr. Kenneth
Berliner, an orthopedic surgeon. Dr. Berliner concluded that Manning likely suffered a labral tear
in her left shoulder (a SLAP tear), and recommended arthroscopic surgery to repair it.
         Dr. Merritt Pember, another orthopedic surgeon, also examined Manning to provide a
second opinion of Dr. Berliner’s assessment and findings. He concluded that Manning likely had
a shoulder impingement and probably a SLAP tear. He concluded further that surgery might not
be necessary, because physical therapy is the first line of treatment, and therapy can sufficiently
remedy these types of injuries in most people.
         Finally, Manning went to Dr. James Buckingham, a psychiatrist. He examined Manning
and believed that she sustained posttraumatic stress disorder (PTSD) as a result of the accident.
         At the time of her accident, Manning worked at Pilgrim’s Pride, a poultry processing
facility, and separately, had part time employment cleaning the home of a nearby neighbor. The
collision occurred after she left her part time job and was returning home. Manning was off work
for approximately six weeks after the accident. She returned to work at Pilgrim’s Pride, but was
eventually terminated. The reason for her termination was disputed at trial. Manning claims that
she was terminated because the accident rendered her unable to perform her duties adequately.
Golden argued that Manning lost her job due to chronic absenteeism unrelated to her injuries. In
any event, after her termination from Pilgrim’s Pride, she obtained employment at Tyson Foods,
performing the same type of work.
         The jury awarded Manning damages as follows: (1) $9,302.61 for past medical expenses
and $10,000.00 for future medical expenses; (2) $2,850.00 for lost earnings in the past, $0.00 for
future lost earnings; (3) $40,000.00 in physical pain and mental anguish sustained in the past and
$5,000.00 for future physical pain and mental anguish; and (4) $0.00 for physical impairment
sustained in the past and future. Excluding interest and court costs, the total judgment was in the
amount of $67,152.61. This appeal followed.1




         1
           Golden filed a conditional cross appeal, in which he contends that in the event we sustain any of Manning’s
issues, the trial court abused its discretion in disallowing his evidence that Manning was not wearing her seat belt at
the time of the crash and its impact on her damages. Since we affirm the judgment of the trial court, we need not
analyze this issue. See TEX. R. APP. 47.1.



                                                          2
                                FACTUAL SUFFICIENCY OF THE EVIDENCE
       In her first issue, Manning contends that the award of $10,000.00 for future medical
expenses is insufficient.2 In her second issue, she contends the award for past lost wages in the
amount of $2,850.00 and the $0.00 award for lost wages that she will in reasonable probability
sustain in the future is insufficient. In her third issue, Manning argues that the jury’s award of
$0.00 for past and future physical impairment is insufficient. Finally, in her fourth issue, Manning
asserts that the award for past physical pain and mental anguish in the amount of $40,000.00 is
inadequate, as well as the $5,000.00 award for future physical pain and mental anguish. Because
these issues are factual sufficiency challenges to the damages award, we address them together.
Standard of Review
       In a factual sufficiency review, we consider and weigh all the evidence, both supporting
and contradicting the finding. See Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07 (Tex.
1998). When a party attacks the factual sufficiency of an adverse finding for which she has the
burden of proof, she must demonstrate on appeal that the adverse finding is against the great
weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.
2001) (per curiam).
       We may not substitute our own judgment for that of the trier of fact, pass upon the
credibility of the witnesses, or decide how much weight should be given to their testimony. See
Ellis, 971 S.W.2d at 407. The jury may believe one witness and disbelieve another and it may
resolve any inconsistencies in any witness’s testimony. City of Keller v. Wilson, 168 S.W.3d 802,
819 (Tex. 2005); McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986).
       In this appeal, none of the parties challenge the wording of the jury questions at issue or
accompanying instructions, so we will measure sufficiency of the evidence against the questions
as submitted. See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000); Texas First Nat’l Bank v.
Ng, 167 S.W.3d 842, 855–56 (Tex. App.—Houston [14th Dist.] 2005, pet. granted, judgm’t
vacated w.r.m.). The amount of evidence necessary to affirm a judgment is far less than that
necessary to reverse a judgment. GTE Mobilnet of S. Tex. L.P. v. Pascouet, 61 S.W.3d 599, 616
(Tex. App.—Houston [14th Dist.] 2001, pet. denied). The jury generally has great discretion in
considering evidence on the issue of damages. McGalliard, 722 S.W.2d at 697; Lanier v. E.

       2
           Manning does not challenge the award for past medical expenses.




                                                         3
Foundations, Inc., 401 S.W.3d 445, 455 (Tex. App.—Dallas 2013, no pet.). As a general
principle, we need to remain mindful that the amount of damages awarded is uniquely within the
jury’s discretion. Mo. Pac. R.R. Co. v. Roberson, 25 S.W.3d 251, 257 (Tex. App.—Beaumont
2000, no pet.).
Future Medical Expenses and Past Lost Wages
        In her first issue, and part of her second issue, Manning challenges the jury’s award of
$10,000.00 for future medical expenses and $2,850.00 for lost earnings in the past.
        To preserve a complaint concerning the factual sufficiency of the evidence or that a jury
finding is against the overwhelming weight of the evidence, a party must present that specific
complaint to the trial court in a motion for new trial. TEX. R. CIV. P. 324(b)(2), (3); Cecil v.
Smith, 804 S.W.2d 509, 510–11 (Tex. 1991). In addition, the issues raised in the motion for new
trial must be described in such a way that the complaint can be clearly identified and understood
by the court. TEX. R. CIV. P. 321, 322; Basic Energy Serv., Inc. v. D-S-B Properties, Inc., 367
S.W.3d 254, 263 (Tex. App.—Tyler 2011, no pet.).
        Manning filed a motion for new trial. In the motion, she inserted the jury’s findings on
each element of damages, exactly as they appeared in the jury charge. Each element of damages
was separated and prefaced with a unique letter identifier. Then, Manning specifically listed
which elements of damages she challenged in the motion by each unique letter identifier.
Manning omitted the unique letter identifiers for future medical expenses and lost wages in her
motion for new trial, and did not otherwise make any argument or cite any authority that showed
she challenged the jury’s award on those elements of damages. However, as part of this appeal,
she attempts to raise a challenge to the factual sufficiency of the evidence on those two damage
elements. Since she did not raise the issue in her motion for new trial, Manning has waived any
challenge to the jury’s findings on those two elements of damages.
        Manning’s first issue and the part of her second issue relating to past lost wages are
overruled.
Lost Earning Capacity
        In the remaining portion of her second issue, Manning contends that the jury award of
$0.00 for ―lost earnings that in reasonable probability will be sustained in the future‖ is factually
insufficient.




                                                 4
       Lost wages refers to the actual loss of income due to an inability to perform a specific job
from the time of injury to the time of trial. Koko Motel, Inc. v. Mayo, 91 S.W.3d 41, 51 (Tex.
App.—Amarillo 2002, pet. denied). On the other hand, lost earning capacity is an assessment of
what the plaintiff’s capacity to earn a livelihood actually was and the extent to which that capacity
was impaired by the injury. Id. Both forms of lost earning capacity are measured not by what a
person actually earned before an injury, but by what the person’s capacity to earn was, even if she
had never worked in that capacity in the past. Gen. Motors Corp. v. Burry, 203 S.W.3d 514, 553
(Tex. App.—Fort Worth 2006, pet. denied).            Because calculating the extent of impairment
constitutes an exercise in uncertainty, the assessment of lost earning capacity is left to the
discretion of the jury so long as there is reasonably certain evidence to support the jury’s exercise
of that discretion. Scott’s Marina at Lake Grapevine Ltd. v. Brown, 365 S.W.3d 146, 159 (Tex.
App.—Amarillo 2012, pet. denied).
       Manning contends that she will need surgery to repair her shoulder after trial, and that she
will be absent from work. By the time of trial, Manning obtained similar employment at Tyson
Foods after she was terminated at Pilgrim’s Pride. She argues that the jury should have awarded
her damages for the wages she will lose while recovering from the surgery due to her absence
from work at Tyson Foods.
       Manning necessarily argues that surgery was required to resolve her shoulder condition.
Dr. Berliner, who did not testify at trial in person or by deposition, stated in his notes that he
believed surgery would be necessary to correct Manning’s shoulder impingement and SLAP tear.
Dr. Pember, the doctor who provided most of the testimony on this issue at trial, stated that he
believed Manning likely had a shoulder impingement, and that it was possible that she had a
labrum tear. However, he testified that surgery might not be necessary, and that these injuries can
resolve with therapy, or at least become asymptomatic, in up to eighty percent of the population
with these types of injuries. Also, he stated that physical therapy should be the first option for
treatment and that it can often resolve the issue without the need for invasive surgery. Dr. Pember
examined Manning and determined that her left shoulder was structurally intact, possessed full
strength, and maintained full neurological function.
       Prior to her examination by Dr. Pember, Manning visited Dr. Ha, a chiropractor. But the
record does not establish that the treatment Manning underwent at Dr. Ha’s office is the type of
therapy needed to resolve her shoulder injuries. Nor does the record show that she underwent



                                                 5
therapy for a sufficient duration in order to determine whether therapy would successfully resolve
her condition. In fact, Manning testified that she listened to Dr. Pember’s testimony, agreed that
she did not undergo that specific type of therapy, and that she would be willing to do so in order to
resolve her shoulder pain. Manning also testified that her pain had lessened over time, was
managed by over the counter pain medications, and that most of her injuries have healed.
       The jury could have decided that surgery was not reasonably necessary, especially since
Manning was doing the same type of work at a rival company at the time of trial. Consequently,
without showing the need for surgery, Manning did not show that she would have lost time from
work in the future. Therefore, we cannot conclude that the jury’s award is so against the great
weight and preponderance of the evidence as to be clearly wrong or manifestly unjust.
       Manning’s second issue is overruled.
Past and Future Mental Anguish and Physical Pain and Suffering
       In her fourth issue, Manning challenges the factual sufficiency of the evidence to support
the jury’s award of $40,000.00 in physical pain and mental anguish sustained in the past and
$5,000.00 for future physical pain and mental anguish.
       Damages fall within two broad categories when someone suffers personal injuries,
―economic and non-economic damages.‖ Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d
757, 763 (Tex. 2003). ―Traditionally, economic damages are those that compensate an injured
party for lost wages, lost earning capacity, and medical expenses.‖ Id. And ―[n]on-economic
damages include compensation for pain, suffering, mental anguish, and disfigurement.‖             Id.
Moreover, ―[t]he process of awarding damages for amorphous, discretionary injuries such as
mental anguish or pain and suffering is inherently difficult because the alleged injury is a
subjective, unliquidated, nonpecuniary loss.‖ HCRA of Tex., Inc. v. Johnston, 178 S.W.3d 861,
871 (Tex. App.—Fort Worth 2005, no pet.). When the existence of some pain and mental anguish
has been established, ―there is no objective way to measure the adequacy of the amount awarded
as compensation, which is generally left to the discretion of the fact finder.‖ Pentes Design, Inc.
v. Perez, 840 S.W.2d 75, 80 (Tex. App.—Corpus Christi 1992, writ denied).
       Physical pain and suffering may be established by circumstantial evidence. Johnston, 178
S.W.3d at 871. ―The duration of the pain . . . is an important consideration.‖ Id. The fact finder
―is given a great deal of discretion in awarding an amount of damages it deems appropriate for
pain and suffering.‖ Id.



                                                 6
          To support an award of mental anguish damages, the plaintiff’s evidence must describe
―the nature, duration, and severity of their mental anguish, thus establishing a substantial
disruption in the plaintiff[’s] daily routine.‖ See Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788,
797 (Tex. 2006) (quoting Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995)). The
Texas Supreme Court has held that ―some types of disturbing or shocking injuries have been
found sufficient to support an inference that the injury was accompanied by mental anguish.‖
Parkway, 901 S.W.2d at 445. For example, as early as 1888, the court recognized that serious
bodily injury ―involving fractures, dislocations, etc., and results in protracted disability and
confinement to bed‖ necessarily resulted in some degree of physical and mental suffering. See
Brown v. Sullivan, 10 S.W. 288, 290 (Tex. 1888). Furthermore, to support an award for future
mental anguish, a plaintiff must demonstrate ―a reasonable probability‖ that she will ―suffer
compensable mental anguish in the future.‖ Adams v. YMCA of San Antonio, 265 S.W.3d 915,
917 (Tex. 2008).
          In the instant case, we note that the court’s charge to the jury combined physical pain and
mental anguish as one category of damages. Since there are not separate findings as to each of
these distinct elements of damages, Manning is limited to challenging the sufficiency of the
evidence on these damage elements as a whole. Scott’s Marina at Lake Grapevine Ltd., 365 at
161.
          Manning suffered significant physical injuries, including broken ribs, a punctured lung and
pneumothorax requiring the insertion of a chest tube, a broken nose, and facial lacerations, as well
as bruises and contusions over large portions of her body. As we have mentioned, she also
suffered a shoulder injury.      Undoubtedly, she was in significant physical pain.        Also, Dr.
Buckingham testified that Manning had PTSD as a result of the accident. The jury awarded
Manning $40,000.00 for her past physical pain and mental anguish, and was in a unique position
to decide the amount to award Manning. We see no reason to disturb the jury’s discretion in this
regard.
          With respect to future physical pain and mental anguish, Manning testified that most of her
injuries have healed, and that the pain from her remaining injury, the injury to her left shoulder, is
managed by over the counter pain medications. Dr. Buckingham testified that $5,000.00 would
reasonably cover the expense of future therapy sessions conducted by a Master’s Degree level
therapist, which would be the type of therapist that would likely treat her PTSD. The jury



                                                   7
awarded exactly $5,000.00 for future pain and mental anguish, which was a reasonable conclusion
based on the evidence.
       Manning’s fourth issue is overruled.
Past and Future Physical Impairment
       In her third issue, Manning alleges that the jury award of $0.00 for physical impairment
sustained in the past and future is against the great weight and preponderance of the evidence.
       ―Physical impairment, sometimes called loss of enjoyment of life, encompasses the loss of
the injured party’s former lifestyle.‖ Gen. Motors Corp. v. Burry, 203 S.W.3d 514, 554 (Tex.
App.—Fort Worth 2006, pet. denied); see Doctor v. Pardue, 186 S.W.3d 4, 18 (Tex. App.—
Houston [1st Dist.] 2005, pet. denied) (quoting Golden Eagle Archery, Inc., 116 S.W.3d at 772).
―[L]oss of enjoyment of life fits best among the factors a factfinder may consider in assessing
damages for physical impairment. Indeed, if other elements such as pain, suffering, mental
anguish, and disfigurement are submitted, there is little left for which to compensate under the
category of physical impairment other than loss of enjoyment of life.‖ Golden Eagle Archery,
Inc., 116 S.W.3d at 772. A plaintiff generally must show that her physical impairment damages
are substantial and extend beyond any pain, suffering, mental anguish, lost wages, or diminished
earning capacity. Burry, 203 S.W.3d at 555; see Golden Eagle Archery, Inc., 116 S.W.3d at 772
(indicating that it would be ―appropriate to advise the jury [by instruction] that it may consider as
a factor loss of enjoyment of life. But the jury should be instructed that the effect of any physical
impairment must be substantial and extend beyond any pain, suffering, mental anguish, lost wages
or diminished earning capacity and that a claimant should not be compensated more than once for
the same elements of loss or injury.‖).
       In this case, ―physical impairment‖ was undefined, and the relevant instruction was that
the jury ―[c]onsider the elements of damages listed below and none other. Consider each element
separately. Do not include damages for one element in any other element.‖ During deliberations,
the jury sent a note to the trial court asking for a definition of the term. The trial court replied that
the term is undefined and that the jury members should use their common understanding of the
term. The jury awarded $0.00.
       Manning recovered damages for mental anguish and pain and suffering. Under these
circumstances, any impairment award would serve as compensation for her loss of enjoyment of
life. Manning argues that she suffered from a loss of enjoyment of life while she was bedridden in



                                                   8
the hospital; that she was unable to walk, bathe herself, or handle her young son for a period of
time after she was discharged from the hospital; and that she had difficulty combing her hair,
sleeping, standing, lifting, bending and preparing meals for her family. This evidence came
primarily from Manning’s own testimony.
         The parties dispute whether damages may be awarded for temporary impairment. See,
e.g., Patlyek v. Brittain, 149 S.W.3d 781, 787 (Tex. App.—Austin 2004, pet. denied) (citing
Golden Eagle Archery, Inc., 116 S.W.3d at 765-66). They also dispute the type of activities that
a person such as Manning must no longer be able to enjoy in order for the loss of enjoyment to be
compensable as impairment under the law. See id.
         Irrespective of the parties’ disagreements on these issues, the jury could have reasonably
disbelieved Manning’s testimony that she suffered from impairment, because she admitted to not
fully telling the truth with respect to other allegations. For instance, she initially alleged that
Golden appeared to have intentionally caused the accident, that the force of the impact caused her
car to roll over, that she had been burned as a result of the accident, and that there were children in
the car at the time of the accident. She later retracted those statements.
         Finally, even if the jury believed her testimony, it could have determined based on the
evidence that any impairment Manning suffered was not substantial and worthy of compensation
beyond the other damages it awarded her. See Burry, 203 S.W.3d at 555; see also Golden Eagle
Archery, Inc., 116 S.W.3d at 772 (stating that the impairment must be substantial and extend
beyond the other compensable injuries awarded by the jury). On the record before us, we cannot
conclude that the award of $0.00 for past and future physical impairment was so against the great
weight and preponderance of the evidence as to be clearly wrong or manifestly unjust.
         Manning’s third issue is overruled.


                                                    DISPOSITION
         Having overruled Manning’s four issues, we affirm the trial court’s judgment.

                                                                   BRIAN HOYLE
                                                                      Justice

Opinion delivered February 28, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

                                                     (PUBLISH)


                                                            9
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                         FEBRUARY 28, 2014


                                          NO. 12-12-00232-CV


              JANIE MANNING, APPELLANT/CROSS-APPELLEE,
                               Appellant
                                  V.
        BRYAN GOLDEN AND GOLDEN RESTORATION AND FLOOR CARE,
                     APPELLEES/CROSS-APPELLANTS,
                                Appellee


                                 Appeal from the 217th District Court
                     of Angelina County, Texas (Tr.Ct.No. CV-42702-09-11)

                       THIS CAUSE came to be heard on the oral arguments, appellate record
and briefs filed herein, and the same being considered, it is the opinion of this court that there
was no error in the judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the appellant/cross-appellee, JANIE MANNING, for which execution may issue, and
that this decision be certified to the court below for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
