                                 NO. 07-99-0304-CV

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL C

                                  AUGUST 30, 2002

                         ______________________________


                           JERLEAN STEWART, APPELLANT

                                          V.

                             TAT’S TEXACO, APPELLEE


                       _________________________________

          FROM THE 172ND DISTRICT COURT OF JEFFERSON COUNTY;

              NO. E-153,839; HONORABLE DONALD J. FLOYD, JUDGE

                        _______________________________

Before QUINN and REAVIS and JOHNSON, JJ.


      Appellant Jerlean Stewart appeals the amount of her damages found by the jury and

the take-nothing judgment resulting from the trial court’s allowing credit against her

damages for pre-trial payments of medical expenses by the liability insurer of appellee,

Tat’s Texaco. We affirm.
                                      BACKGROUND


       Appellant Jerlean Stewart slipped and fell while she was a customer on the

premises occupied by appellee Tat’s Texaco. She filed suit alleging that Tat’s negligence

proximately caused her fall and injuries. The case was tried to a jury. The jury found that

(1) negligence of both Stewart and Tat’s proximately caused the occurrence; and (2) the

negligence proximately causing the occurrence was allocable 50% to Stewart and 50% to

Tat’s. The question of damages was submitted in broad form. 1 The jury found that $5,000

would fairly compensate Stewart for injuries resulting from the occurrence. In its judgment,

the trial court allowed a “dollar for dollar credit in the amount of $16,687.80 for medical

expenses paid before suit was filed to [Stewart’s] health care providers.” Judgment was

entered that Stewart take nothing.


       By four issues, Stewart urges reversible error. Her first two issues argue that her

damages exceeded the jury’s finding of $5,000, and she challenges the legal and factual

sufficiency of the evidence as to the damages finding. Issue three asserts that there is no

evidence of the $16,687.80 for which credit was given in the judgment. Issue four claims

that the trial court’s allowing the $16,687.80 credit for her medical expenses previously

paid on behalf of Tat’s is an implied finding by the court that her medical expenses from

the fall were in that amount, “thereby creating a conflict in the jury’s verdict.”


       1
        The question provided for a single answer encompassing the elements of past and
future (1) physical pain and mental anguish, (2) physical impairment, (3) reasonable and
necessary medical care, and (4) loss of earning capacity. The jury was instructed that it
should not include any amount for any condition not resulting from the occurrence, or for
any condition existing before the occurrence.

                                              2
                                             LAW


       An appellate court reviewing “no evidence” complaints may consider only the

evidence and inferences that tend to support the finding and must disregard all contrary

evidence and inferences. See Continental Coffee Prods. v. Cazarez, 937 S.W.2d 444, 450

(Tex. 1996). When a party bears the burden of proof and the factfinder fails to find for that

party, a legal sufficiency of the evidence challenge to the factfinder’s failure to find for the

party entails two inquiries. See Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.

1989). First, the record must be examined for evidence that supports the factfinder’s

failure to find for the party with the burden of proof. Second, if there is no evidence to

support the failure to make a finding, then the entire record must be examined to see if the

contrary proposition is established as a matter of law. Id.


       If a finding is challenged for factual sufficiency of the evidence, all of the evidence

is reviewed, see Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex. 1986), both

favorable to and contrary to the findings. See In re King’s Estate, 150 Tex. 662, 664-65,

244 S.W.2d 660, 661 (1951). We reverse on the basis of factual insufficiency only if the

verdict is so against the great weight and preponderance of the evidence that it is

manifestly erroneous or unjust. Id. If we sustain a factual insufficiency issue, we reverse

and remand for a new trial. Id.


       In making our determination as to factual sufficiency assertions, we do not reweigh

the evidence and set the verdict aside merely because we feel that a different result is



                                               3
more reasonable. See Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex. 1986). The

factfinder is the sole judge of the credibility of the witnesses and the weight to be given

their testimony. See Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 549 (1962). The

factfinder may believe one witness and disbelieve another. See McGalliard v. Kuhlmann,

722 S.W.2d 694, 697 (Tex. 1986). Where enough evidence is before the factfinder that

reasonable minds could differ on the meaning of the evidence, or the inferences and

conclusions to be drawn from the evidence, we may not substitute our judgment for that

of the factfinder. See Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988).


       Where the law does not provide a precise legal measure of damages, the trier of

fact has great discretion in fixing the amount of the damage award. See McGalliard, 722

S.W.2d at 697. Opinions and judgments of expert witnesses are not conclusive on the

trier of fact. Id. A jury generally may disregard a doctor's testimony on both the necessity

of treatment and on the causal relationship between the accident and the plaintiff's

complaints. See Johnson v. King, 821 S.W.2d 425, 428 (Tex.App.--Fort Worth 1991, writ

denied). Expert testimony as to whether an accident caused a particular injury is not

binding upon a jury. Id.; Hulsey v. Drake, 457 S.W.2d 453, 460 (Tex.Civ.App.--Austin

1970, writ ref'd n.r.e.). Expert testimony regarding expenses incurred has evidentiary

significance but is not binding on the jury. See Prati v. New Prime, Inc., 949 S.W.2d 552,

556 (Tex.App.--Amarillo 1997, writ denied).


                                        ANALYSIS

                          Issues 1 and 2: Amount of Damages


                                              4
      Stewart had numerous physical problems which pre-dated her fall at Tat’s. She had

many physical problems after her fall. The jury was instructed, in connection with question

3 as to her damages, that no amount was to be included for any condition not resulting

from the occurrence in question, or which existed before the occurrence. The jury was not

bound to accept Stewart’s testimony or evidence as to a causal relationship between her

fall and the complaints she attributed to the fall. See Johnson, 821 S.W.2d at 428. Nor

was the jury bound to accept expert testimony as to a causal relationship between her fall

and complaints she alleged resulted from the fall, or as to the necessity of a particular

amount of medical treatment resulting from her fall. See Ponce v. Sandoval, 68 S.W.3d

799, 807 (Tex.App.--Amarillo 2001, no pet.); Prati, 949 S.W.2d at 556.


      There was some evidence to support the jury’s damage award. The evidence was

not such, however, as to establish a greater particular amount of damages as a matter of

law. See Sterner, 767 S.W.2d at 690. Thus, a challenge to the legal sufficiency of the

evidence fails. See Ponce, 68 S.W.3d at 809.


      In considering Stewart’s factual sufficiency challenge, we are not free to reweigh

the evidence and disregard the discretion exercised by the jury. See McGalliard, 722

S.W.2d at 697; Pool, 715 S.W.2d at 634. Although we might have found a different

amount of damages had we been serving as the jury, we cannot say, in light of the entire

record, that the damages award was so against the great weight and preponderance of the

evidence as to be manifestly unjust. See In re King’s Estate, 244 S.W.2d at 661. We

overrule Stewart’s issues one and two.


                                            5
                     Issue 3: Tat’s Entitlement to Settlement Credit


       By her third issue, Stewart contends that the trial court erred in awarding Tat’s a

dollar for dollar credit in the amount of $16,687.80 because there was no evidence to

support the credit amount. Tat’s responds that (1) Stewart stipulated to the amount and

(2) the evidence establishes that Tat’s liability insurance carrier paid such amount to

Stewart’s health care carriers to avoid litigation. See TEX . CIV . PRAC . & REM . CODE ANN .

§§ 33.011 et seq. (Vernon 1997).2


       In its Second Amended Answer, Tat’s elected a dollar for dollar credit for any and

all sums, including but not limited to the amount of $16,687.80, advanced by Tat’s for

payment of Stewart’s medical expenses and fees. Before Stewart began presentation of

her case-in-chief, the following exchange took place on the record:


              (Jury out)
       MR. TAYLOR:          Judge, if we may, can I go ahead and put that on the
                            record real quick?
       THE COURT:           Okay.
       MR. TAYLOR:          Comes now defendant -- and we’ve already pled it in
                            our most recently amended answer, but I want to go


       2
      Stewart does not challenge the applicability of Chapter 33 of the Civil Practice and
Remedies Code. Further reference to provisions of the Code will be by referring to
“TCPRC §_.”

                                             6
                            ahead and put it on the record, that the defendant
                            elects a dollar-for-dollar credit in the amount of
                            $16,687.80. And I told Mr. McGown that to the extent
                            that after the trial is concluded and the verdict is
                            concluded, that to the extent the credit applies, that I
                            can and will supply him with documentation to establish
                            and prove that the credit is deserving and has been
                            paid to the various health care providers.
       MR. MCGOWN:          These are medical expenses that were paid to Mrs.
                            Stewart –
       MR. TAYLOR:          Providers.
       MR. MCGOWN:          To Mrs. Stewart’s providers as a result of the accident.
       MR. TAYLOR:          Well, –
       MR. MCGOWN:          Because of the claim.
       MR. TAYLOR:          That’s right.


Tat’s also refers us to numerous parts of the documentary evidence introduced at trial to

support its claim that the $16,687.80 it claims as a credit was proved to have been paid

by its liability carrier, Trinity Universal Insurance Company, for Stewart’s benefit.


       Tat’s does not reference any part of the record to support its claim that Stewart

stipulated that Tat’s would be entitled to a credit of $16,687.80 in the event of a judgment

in Stewart’s favor. The part of the record we have quoted above does not comprise a

stipulation that Tat’s would be entitled to that amount as a credit.


       Furthermore, the proof cited by Tat’s to support its claim for credit does not

conclusively establish either the amount paid by Trinity Universal or that Trinity Universal

was Tat’s liability carrier. The documents referenced by Tat’s refer variously to Trinity




                                             7
Universal as a group carrier for Tat’s, as the insurer for Stewart as the “Primary Insured,”

and as a secondary insurance company for Stewart as the insured.


       Nevertheless, we conclude that Tat’s has met its burden of proving its entitlement

to a credit. TCPRC Chapter 33 requires only a written election before the case is

submitted to the factfinder in order for a defendant to obtain a dollar-for-dollar settlement

credit. See TCPRC § 33.014;3 Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 927 (Tex.

1998). In Ellender, the Texas Supreme Court determined that the defendant’s informing

the trial court of the settlement amount and setting out the settlement amount in a written

opposition to a motion for judgment, when the amount of the settlement was not contested

by the opposing party, was sufficient to meet the burden of proof required to obtain

settlement credit. See id. at 927.




       3
        Section 33.012(b) of the TCPRC provides that:
                If the claimant has settled with one or more persons, the court shall further
                reduce the amount of damages to be recovered by the claimant with respect
                to a cause of action by a credit equal to one of the following, as elected in
                accordance with Section 33.014:
                        (1) the sum of the dollar amounts of all settlements;
                                              * * *
       Section 33.014 provides in relevant part, “[i]f a claimant has settled with one or
more persons, an election must be made as to which dollar credit is to be applied under
Section 33.012(b). This election shall be made by any defendant filing a written election
before the issues of the action are submitted to the trier of fact and, when made, shall be
binding on all defendants.
       For the purposes of the comparative responsibility law, a defendant who has paid
money to or on behalf of a plaintiff in partial consideration of potential liability is considered
to be a “settling person.” See C & H Nationwide, Inc. v. Thompson, 903 S.W.2d 315, 320
(Tex. 1994).

                                                8
       At trial Stewart did not contest the amount of the credit claimed by Tat’s. She did

not contest the amount of the credit in her motion for new trial, although she disputed Tat’s

proof of the amount. On appeal she does not contest the amount paid to her medical

providers, only whether Tat’s proved the payments. We conclude that measured by the

proof requirements specified by the Texas Supreme Court for settlement credits, the trial

court did not err in allowing Tat’s the credit it pled and stated into the record. See id.


              Issue 4: Does the Settlement Credit Conflict with the Jury Verdict?


       By her fourth issue, Stewart argues that by allowing a dollar for dollar credit in the

amount of $16,687.80, the trial court impliedly found that Stewart’s medical expenses were

$16,687.80, that her damages for physical pain and mental anguish were zero, and that

such finding created a conflict in the jury’s verdict [sic].


       Stewart cites two cases to support her argument: Hicks v. Ricardo, 834 S.W.2d 587

(Tex.App.--Houston [1st Dist.] 1992, no writ), and Davis v. Davison, 905 S.W.2d 789

(Tex.App.--Beaumont 1995, no writ).4 In Hicks, the appellate court found that it was

inconsistent for the jury to find damages for past mental anguish but not for future mental

anguish when the same circumstances that produced at least some of the previous

anguish were likely to recur, and there was evidence that the plaintiff’s injury would

continue to adversely affect her in the future. See Hicks, 834 S.W.2d at 591-92. Hicks did

not present an issue concerning whether the trial court’s granting of a judgment credit for



       4
           Cited in appellant’s brief as Davis v. Davis.

                                                9
payments in consideration of potential liability created a conflict within the jury’s answers

via an “implied finding” by the trial court. Hicks is not applicable to Stewart’s issue.


       In Davis, the jury’s award of zero damages in a negligence action was held to be

contrary to the weight and preponderance of the evidence where the objective evidence

demonstrated that the plaintiff received first and second degree burns as a result of the

defendant’s negligence. See Davis, 905 S.W.2d at 791. Davis did not address the

question of whether the trial court’s allowing a judgment credit for amounts paid in

consideration of potential liability resulted in an implied finding by the court in conflict with

the jury findings. We do not consider Davis apposite to Stewart’s issue.


       Stewart’s underlying premise for issue four is her conclusion that the trial court

made an implied finding that her cost of reasonable and necessary medical care for

injuries resulting from the occurrence was $16,687.80. She has, however, cited no

authority for her assertion that merely by allowing credit for advance payment of medical

expenses by Tat’s insurer, the trial court made such an implied finding. Under such

circumstances, the issue is waived by inadequate briefing. See, e.g., TEX . R. APP . P.

38.1(h); Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994);

Trenholm v. Ratcliff, 646 S.W.2d 927, 934 (Tex. 1983); Gulf Coast State Bank v.

Emenhiser, 562 S.W.2d 449, 452-53 (Tex. 1978).


       Moreover, TCPRC Chapter 33 does not provide that settlement amounts either must

be, or can be, allocated to particular elements of actual damages such as medical care,



                                               10
lost wages, lost earning capacity or physical pain and mental anguish and then those

allocated amounts credited only to damages found for corresponding elements by the

factfinder. We will not engraft such a requirement into the statute. Tat’s complied with the

requirement that in order to receive credit, it show an amount paid in consideration of

potential liability to Stewart. See TCPRC § 33.011(5); Ellender, 968 S.W.2d at 927. We

overrule Stewart’s fourth issue.




       The judgment of the trial court is affirmed.




                                                        Phil Johnson
                                                           Justice



Do not publish.




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