                                 NO. 07-01-0050-CV

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL D

                                  JANUARY 4, 2002

                         ______________________________


               ARAMARK HEALTHCARE SUPPORT SERVICES, INC.,

   d/b/a METHODIST HOSPITAL CAFETERIA AND FOOD SERVICE, APPELLANT

                                          V.

                            WILDA WISDOM, APPELLEE


                       _________________________________

            FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

               NO. 98-501,815; HONORABLE BLAIR CHERRY, JUDGE

                        _______________________________

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


       Appellant Aramark Healthcare Support Services, Inc., d/b/a Methodist Hospital

Cafeteria and Food Service Inc. (Aramark) appeals a judgment following a jury trial that

appellee Wilda Wisdom recover $198,634.37 from Aramark as her damages following a

slip and fall accident on the premises of Aramark. By six issues, Aramark contends that
(1) the trial court abused its discretion in allowing a nurse to give expert testimony that the

medical expenses incurred were reasonable, (2) the trial court abused its discretion in

allowing a nurse to give expert testimony that the medical expenses were necessarily

incurred as a result of the occurrence, (3) the evidence was insufficient to support the

jury’s finding that the medical treatment given and the expenses incurred were necessary

as a result of the occurrence, (4) the evidence was insufficient to support the jury’s findings

that the condition of the premises posed an unreasonable risk of harm, (5) the evidence

was insufficient to support the jury’s finding that Aramark knew or should have known of

the condition, (6) the trial court abused its discretion in denying the motion to remit

damages because Wisdom’s pleadings do not support the jury’s award of damages.

Based upon the rationale expressed herein, we reverse and remand in part and affirm in

part.


        On March 11, 1997, Wisdom sustained injuries when she fell in a cafeteria operated

by Aramark while visiting her husband at Methodist Hospital. In addition to housing a

cafeteria, the facility also includes other food service facilities, i.e. Burger King, Chick Fil-A,

pizza, and a salad bar. When she entered the food service area, Wisdom walked through

the area to survey the choices of food. After walking twice by the food service outlets and

a cardboard advertisement sign1 near the salad bar, Wisdom selected an entree. As she


        1
        The sign was a full size replica of a Star Wars character advertising the Star Wars
Trilogy and Lays Potato Chips held up by a wing, perpendicular to image, running along
the back side almost the entire length and protruding out several inches from the flat

                                                2
was walking to the checkout counter at the opposite end of the cafeteria area, she tripped

on the cardboard sign that had fallen on the floor near the salad bar. Wisdom suffered

injuries to her elbow and back causing her to incur medical expenses in excess of

$100,000 and to miss almost a year of work.


       By its first issue, Aramark contends that the trial court abused its discretion in

allowing a nurse to give expert testimony that the medical expenses incurred were

reasonable, and by its second issue, it contends that the trial court abused its discretion

in allowing a nurse to give expert testimony that the medical expenses were necessarily

incurred as a result of the occurrence in question.


       In order to preserve a complaint for appellate review, a party must distinctly specify

an objection to the trial court. Tex. R. Evid. 103(a)(1); Tex. R. App. P. 33.1(a); St. Paul

Surplus Lines Ins. Co. v. Dal-Worth Tank Co., 917 S.W.2d 29, 45 (Tex.App.--Amarillo

1995, aff’d in part and rev’d in part, 974 S.W.2d 51 (Tex. 1998)). The purpose of an

objection is two-fold: (1) to notify the trial judge and the other party of the complaint; and

(2) to preserve the complaint for appellate review. See Wilkerson v. Pic Realty Corp., 590

S.W.2d 780, 782 (Tex.Civ.App.--Houston [14th Dist.] 1979, no writ). Because Aramark’s

brief does not provide a reference to the record where it presented its objection to the trial

court as required by Texas Rules of Appellate Procedure 38.1(f) and (h), we will examine




surface.

                                              3
the portion of the record which contains the testimony of Nurse Wintroath, according to the

reference provided by counsel during oral argument.


      Q. (By Mr. Simpson). I want to show you what has been marked as Plaintiff’s
      Exhibit Number 1 and ask you if you recognize that.

      A. I do.

      Q. And would you tell the ladies and gentlemen of the jury what that is?

      A. This is a list of or a summary of bills that have been accrued by Ms.
      Wisdom since her injury and–bills.

      Q. All right. And the charges that are reflected there, did you see bills that
      match up with those charges?

                                           * * *

       Mr. Whiteside: Well, I don’t think she–I don’t think a nurse practitioner or a
       case manager is qualified to render a medical decision. She can testify,
       perhaps, as to the reasonableness of the bills, but can’t testify to whether or
       not the bills were made necessary or are necessary, as a result of the
       treatment, to treat the particular condition in question, because she is not a
       medical doctor.

                                           * * *

       Q. (By Mr. Simpson:) Ms. Wintroath, do you have an opinion as to whether
       or not the charges that are reflected there are reasonable charges for the
       Lubbock area?

       A. Yes, they are.

       Mr. Simpson: Your Honor, we will offer this exhibit later when Ms. Wisdom
       testifies. We will lay the rest of the foundation. That is all we have of this
       witness.

                                           * * *


                                             4
                                      Cross Examination

                                         * * *
       Q. But that is all you are saying. You are not saying these charges were
       made necessary as a result of this accident?

       A. No, I am not saying that.

                                           * * *

       Q. . . .You are just saying he is going to bill for whatever he did?

       A. Yes. I am saying that the charges that I reviewed were reasonable
       charges for the procedures that were done.

       Q. Okay. That is fair enough.



According to the above record, Aramark did not make any objection to the testimony of the

nurse that the charges for the medical procedures were reasonable. Indeed, it appears

that trial counsel agreed that she could testify as to the reasonableness of the medical fees

and expenses. Therefore, issue one presents nothing for review. Additionally, regarding

issue two, the record also demonstrates that the nurse clarified her testimony and

ultimately testified that she was not expressing any opinion as to medical necessity, which

prompted Aramark’s counsel’s response, “[t]hat is fair enough.” Therefore issue two

presents nothing for review, and accordingly, issues one and two are overruled.


       By issue three, Aramark contends that the evidence was insufficient to support the

jury’s finding that the medical treatment given and expenses incurred were necessary as



                                             5
a result of the occurrence.2 In reviewing a factual insufficiency challenge, we must

consider and weigh all the evidence in support of the jury finding and set it aside only if it

is so contrary to the overwhelming weight of the evidence as to be manifestly unjust. Pool

v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); Williams v. Gaines, 943 S.W.2d 185,

191 (Tex.App.--Amarillo 1997, writ denied). As an appellate court we cannot retry the case

or otherwise substitute our judgment for that of the trier of fact. Maritime Overseas Corp.

v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998), cert. denied, 525 U.S. 1017, 119 S. Ct. 541. 142

L. Ed.2d 450 (1998); see also Mohnke v. Greenwood, 915 S.W.2d 585, 589

(Tex.App.–Houston [14th Dist.] 1996, no writ). In our review, we must first consider, weigh,

and examine all of the evidence which supports and which is contrary to the jury’s

determination. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989).


       Because Aramark did not call any witnesses during the trial and did not introduce

any evidence that the medical treatment given and the expenses incurred were not

necessary as a result of the occurrence, the jury was not required to weigh conflicting

evidence. Evidence supporting the jury verdict comes from several sources. First, during

his examination of Nurse Wintroath, counsel for Wisdom told the judge that he would offer

exhibit one, which the nurse referenced in her testimony, during the examination of

Wisdom. At the conclusion of Wisdom’s testimony, the record shows the following:




       2
           By its argument, Aramark only challenges the factual sufficiency of the evidence.

                                               6
      Mr. Simpson: . . . At this time, Your Honor, after the testimony of Ms.
      Wintroath, Ms. Wisdom, and Dr. Johnson, we would offer Plaintiff’s Exhibit
      Number 1 into evidence, which is our bills.

                                          * * *

      Mr. Whiteside: My concern has been, for example, Judge, that Dr. Naga
      Bushan, M.D., is listed, that he treated her from 2/3/98 to 7/6 of 2000 for
      $6,043, and we haven’t heard anything about Dr. Bushan.

      And I have got – I got – I guess, if you could just give me some time on this
      . . . . In other words, I don’t think I have heard any testimony about the
      relationship between anything Dr. Bushan did and this injury. . . . Could we
      have some time to resolve this?

                                           * * *

      The Court: Is there any place–evidence with regard to Dr. Bushan?

      Mr. Simpson: We will clean that up. If it is not related, we will take it out.

      The Court: All right. Subject to that, we will admit it, but I think, perhaps,
      maybe the first thing in the morning, we can do that.

      Mr. Simpson: And one other thing, Your Honor, I would like to offer into
      evidence Plaintiff’s Exhibit Number 7, which is the letter that Dr. Johnson
      wrote to us. I think I am on 7.

      The Court: Yes.

      Mr. Whiteside: No objection.

      The Court: It will be admitted.


Then, when trial commenced the next morning, the record shows that exhibit one, as

modified was admitted into evidence.




                                             7
       Mr. Simpson: Also, with regard to Dr. Bushan’s bills that were in question, we
       took those out of our index.

       The Court: All right. And that solves Mr. Whiteside’s objection?

       Mr. Whiteside: Yes, sir.


       Plaintiff’s exhibit one, as modified to satisfy counsel’s objection, was a list of hospital

and physicians’ services and charges for services rendered to Wisdom, totaling

$112,523.11. Wintroath testified about the reasonableness of the fees and charges. By

his letter of December 6, 1999, which was admitted into evidence without objection, Dr.

Johnson expressed his opinion that, after reviewing his chart, the fall of March 11 was a

direct cause of the injuries which prompted Wisdom’s surgeries. Moreover, Dr. Johnson,

testifying by deposition, stated that the surgeries by Dr. George and Dr. Gill were a direct

result and were necessary.        Considering the summary of the medical services and

expenses described in exhibit one along with Dr. Johnson’s letter and testimony, we

conclude that the jury’s finding is not so contrary to the overwhelming weight of the

evidence as to be manifestly unjust. Issue three is overruled.


       By its fourth and fifth issues, Aramark contends that the evidence was insufficient

to support the jury’s finding that the condition of the premises posed an unreasonable risk

of harm and that it knew or should have known of the condition. We disagree. By its

arguments Aramark contends that there is no evidence to support the jury findings on these

two issues. However, because Aramark adopts the factual sufficiency standard of review


                                                8
set out in its third issue, we will not consider the issues as a challenge to the legal

sufficiency.


       The evidence on these issues is not conflicting because Aramark did not introduce

any evidence that the condition of the premises did not pose an unreasonable risk of harm

or that Aramark did not know or should not have known of the condition of the premises.

The sign was introduced into evidence and described as a man-sized character, which was

free-standing and not affixed to a wall or otherwise secured to prevent it from being

knocked over by visitors to the cafeteria. Joann Gonzales, a cashier at the cafeteria,

testified that the sign had been knocked over before the incident and that the fallen sign

would be dangerous to someone carrying a tray. She also testified that before Wisdom fell,

she called over the intercom for someone to come and pick up the sign but Wisdom fell

before it was moved. Although uncertain, Gonzales had a vague recollection that Wisdom

may have brushed the sign while making her food selection causing the sign to fall.

However, according to her testimony, Wisdom stated that she did not knock the sign over

and did not see it on the floor.


       Ida Johnson, the manager of the cafeteria, went to the scene of the accident. She

testified that it appeared that someone had tripped over the sign and that if it was on the

floor in the traffic pattern, the sign would represent a danger to the customers in the

cafeteria. There being no evidence to the contrary, we conclude that the evidence is not




                                            9
so contrary to the overwhelming weight of the evidence as to be manifestly unjust. Issues

four and five are overruled.


       By their sixth issue, Aramark contends that the trial court abused its discretion in

denying the motion to remit damages because Wisdom’s pleadings do not support the

amount of the jury award. We agree. Generally, a judgment for damages in excess of the

amount sought by the pleadings is error. See Tex. R. Civ. P. 301; Employers Ins. of

Wausau v. Schaefer, 662 S.W.2d 414, 419 (Tex.App.--Corpus Christi 1983, no writ).

Wisdom’s live pleadings requested only $105,000 in past medical expenses, but the jury

awarded $112,523.11. Accordingly, the trial court should not have rendered judgment for

an amount in excess of what Wisdom requested in her trial pleadings. Picon Transp.,Inc.

v. Pomerantz, 814 S.W.2d 489, 491 (Tex.App.–Dallas 1991, writ denied). The judgment

for past medical expenses in excess of the $105,000 sought by Wisdom is erroneous, and

the trial court erred in denying Aramark’s motion for remittitur. Aramark’s sixth issue is

sustained.


       Accordingly, we reverse that portion of the judgment awarding Wisdom recovery for

past medical and hospital care in excess of $105,000, and the cause is remanded to the

trial court for recomputation of the total award, including prejudgment and postjudgment

interest; in all other respects, the judgment is affirmed.



                                                  Don H. Reavis

                                             10
                       Justice


Do not publish.




                  11
