                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                        No. 04-17-00123-CV

                                      Geoffrey Scott CURTIN,
                                             Appellant

                                                 v.

            Laureen Ellen POINDEXTER, and Luke Casillas, LLC, d/b/a Dents N Dings,
                                        Appellees

                     From the 150th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2015CI00537
                              Honorable Renée Yanta, Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice
                  Irene Rios, Justice

Delivered and Filed: June 28, 2018

AFFIRMED

           Geoffrey Scott Curtin seeks to set aside a jury’s verdict awarding him damages in his

negligence suit against appellees. Curtin argues that in light of the evidence at trial, the jury’s

damages findings are clearly wrong and manifestly unjust. He also argues the trial court erred by

submitting a mitigation instruction and a question regarding his proportionate responsibility.

Concluding the trial court did not err, and deferring to the jury’s reasonable credibility

determinations, we affirm the trial court’s judgment.
                                                                                         04-17-00123-CV


                                            BACKGROUND

        This is a personal injury case arising out of a car accident. Curtin was driving westbound

in the leftmost lane on Interstate 410 in San Antonio. Laureen Poindexter was driving at least three

to four car-lengths ahead in the next lane over to the right. A third driver was driving in the lane

to the right of Poindexter.

        According to Poindexter, the third driver veered left into her lane. Poindexter started to

move her car to the left to avoid hitting the car, but the third driver’s car hit the right front side of

Poindexter’s car. Poindexter turned sharply to her left into Curtin’s lane, losing control of her car.

Poindexter’s car spun around one hundred eighty degrees and collided with the median to Curtin’s

left. Curtin’s car collided with Poindexter’s car. Curtin saw Poindexter’s car and the third driver’s

car come into close proximity and then collide, but Curtin did not apply his brakes until his car

collided with Poindexter’s car.

        Curtin and Poindexter waited on the scene until San Antonio Police Department officer

Roland Rodriguez arrived. Curtin and Poindexter had no observable physical injuries after the

accident, and both refused emergency medical treatment. After interviewing both Curtin and

Poindexter, Officer Rodriguez determined Poindexter was solely at fault. Officer Rodriguez

opined there was nothing Curtin could have done to avoid the accident. When the accident

occurred, Poindexter was acting in the course and scope of her employment with Luke Casillas,

LLC, d/b/a “Dents N Dings,” and Curtin was a senior at the University of the Incarnate Word.

        Curtin sued Poindexter for negligently operating her vehicle. He also sued Dents N Dings,

alleging vicarious liability for Poindexter’s negligence and direct liability for negligent

entrustment, hiring, training, and retention. Poindexter and Dents N Dings generally denied

Curtin’s allegations, and alleged Curtin was proportionately responsible and that he failed to

mitigate his damages.
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       The case proceeded to a jury trial, and the parties heavily disputed whether Curtin suffered

a spinal injury as a result of the accident. Both sides presented the testimony of expert witnesses

who testified about the existence and extent of Curtin’s injuries. After the parties presented closing

arguments, the jury found both Poindexter’s and Curtin’s negligence proximately caused Curtin’s

damages, but found Dents N Dings not liable for negligence.

       The jury also found Poindexter 60% responsible and Curtin 40% responsible and that

$12,500 would fairly and reasonably compensate Curtin for his past medical expenses. The jury

found $0 in damages for Curtin’s future medical expenses and past and future physical impairment

and pain and mental anguish. Applying the jury’s findings, the trial court rendered judgment

awarding Curtin $7,500.00 in damages, interest, and costs. Curtin appealed.

       PROPORTIONATE RESPONSIBILITY & PERCENTAGE OF RESPONSIBILITY FINDINGS

       Curtin argues there is legally and factually insufficient evidence to support the jury’s

findings that his negligence proximately caused the accident and that he was 40% responsible.

Curtin bases his challenges to both of these findings on the same arguments, and challenges the

percentage of responsibility findings separately only “in an abundance of caution.” We therefore

address both issues together.

A. Standard of Review

       “When a party attacks the legal sufficiency of an adverse finding on an issue on which it

did not have the burden of proof, it must demonstrate on appeal that no evidence supports the

adverse finding.” Cotter & Sons, Inc. v. BJ Corp., No. 04-16-00186-CV, 2017 WL 4801679, at *7

(Tex. App.—San Antonio Oct. 25, 2017, pet. filed) (op. on reh’g) (quoting Graham Cent. Station,

Inc. v. Pena, 442 S.W.3d 261, 263 (Tex. 2014) (per curiam)). “We review the evidence in the light

most favorable to the verdict, ‘credit[ing] favorable evidence if reasonable jurors could, and



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disregard[ing] contrary evidence unless reasonable juror[s] could not.’” Id. (quoting City of Keller

v. Wilson, 168 S.W.3d 802, 822, 827 (Tex. 2005)).

       When an appellant attacks the factual sufficiency of an adverse finding on an issue on

which it does not have the burden of proof, the appellant must demonstrate on appeal that there is

insufficient evidence to support the finding. Porter v. Denas, No. 04-05-00455-CV, 2006 WL

1686515, at *4 (Tex. App.—San Antonio June 21, 2006, pet. denied) (mem. op.). “The trial court’s

verdict should be set aside only if the evidence supporting the verdict is so weak as to be clearly

wrong and manifestly unjust.” Id. (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)). In a

factual sufficiency review, we view all of the relevant evidence in a neutral light. Cotter & Sons,

Inc., 2017 WL 4801679, at *3.

B. Proportionate Responsibility

       Showing a plaintiff’s proportionate responsibility due to negligence requires a defendant

to prove the plaintiff breached a duty and the plaintiff’s breach was a cause in fact of the injury,

which was a foreseeable result of the plaintiff’s negligence. See IHS Cedars Treatment Ctr. of

DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004); Kay v. N. Tex. Rod & Custom, 109

S.W.3d 924, 927 (Tex. App.—Dallas 2003, no pet.); Ned v. E.J. Turner & Co., Inc., 11 S.W.3d

407, 408–09 (Tex. App.—Houston [1st Dist.] 2000, pet. denied). Curtin does not dispute the

elements of duty or injury, but argues there is no evidence that: (1) he breached a duty; (2) his

breach was a cause in fact of his injury; and (3) his breach proximately caused his injury.

       Curtin gave contradictory testimony about his failure to brake. He first testified he applied

the brakes “[r]ight after the first impact.” But he later testified that when he saw the two cars ahead

of him collide, he did not apply his brakes “in the first impact.” According to Curtin, his car was

three to four car lengths behind Poindexter’s car in the lane to the left. Curtin testified he did not

apply his brakes when he saw the third driver’s car hit Poindexter’s car or when Poindexter’s car
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veered left across the lane he was driving in, and that he did not steer right or left because he was

“in [his] lawful lane of travel” and “felt like [he] had the right of way.” Curtin’s car did not hit

Poindexter’s car until after Poindexter’s car veered into his lane, spun around one-hundred eighty

degrees, and collided with the median. 1

        Viewing Curtin’s testimony in a light most favorable to the jury’s verdict, Curtin was aware

that Poindexter’s car and the third driver’s car had collided, he deliberated and chose not to steer

left or right when Poindexter’s car came into his lane because he believed he had the right of way,

and he did not brake until he collided with Poindexter’s car, which was after Poindexter’s car spun

around one-hundred eighty degrees and after her car collided with the median. The jury reasonably

could have found from this evidence that Curtin’s failure to brake was unreasonable; he

contributed to his damages by failing to brake until the collision; and his damages were a

reasonably foreseeable consequence of his negligence. See Brown v. Goldstein, 685 S.W.2d 640,

642 (Tex. 1985) (holding when plaintiff fails to apply brakes to avoid an accident, issues of

plaintiff’s fault and causation are for the jury); cf. Wilkinson v. Lindsey, 321 S.W.2d 158, 165 (Tex.

Civ. App.—Amarillo 1959, no writ) (holding submission of jury question on defendant’s fault was

proper when evidence showed defendant failed to apply his brakes). We hold that legally sufficient

evidence supports the jury’s findings. See Cotter & Sons, Inc., 2017 WL 4801679, at *7.

        In challenging the jury’s proportionate responsibility finding, Curtin relies on the testimony

of several witnesses. First, Curtin relies on Poindexter’s testimony that he characterizes as an

admission indicating she was 100% responsible. However, Poindexter stated during her deposition

that she was approximately 75% to 80% responsible, and she testified at trial that she made a



1
  According to Officer Rodriguez’s testimony and his accident report, Poindexter’s car hit Curtin’s car and then
Poindexter’s car spun around. But the photos of the two cars show no damage to the passenger side of Curtin’s car
and Curtin’s testimony contradicted Officer Rodriguez’s testimony about how the cars collided.

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mistake and misunderstood what was being asked of her during the deposition. Second, Curtin

relies on the testimony of Luke Casillas, Dents N Dings’ owner, who stated he was not aware of

any evidence that Curtin was negligent, and to Officer Rodriguez’s statement that it would have

been impossible for Curtin to avoid the wreck due to perception and reaction time. However,

Poindexter’s, Casillas’s, and Officer Rodriguez’s trial testimony was not based on first-hand

knowledge of Curtin’s observations or his conduct, including his failure to brake before the

collision. We cannot say, when viewing the evidence in a neutral light, that the evidence in support

of the jury’s findings is so weak as to make the findings clearly wrong or manifestly unjust. Id. at

*3; Porter, 2006 WL 1686515, at *4.

                         NO LIABILITY FINDING AS TO DENTS N DINGS

       The jury found Dents N Dings not liable for negligence, apportioned no responsibility to

Dents N Dings, and assessed no damages against it. Curtin argues the jury’s no liability finding as

to Dents N Dings is against the great weight and preponderance of the evidence, the jury should

have found that Dents N Dings’ negligence proximately caused his injury, and the jury should

have apportioned some responsibility to Dents N Dings. As the party challenging the factual

sufficiency of the evidence to support adverse jury findings on issues on which he had the burden

of proof, Curtin must demonstrate that the adverse findings are “so against the great weight and

preponderance of the evidence that [the findings are] clearly wrong and unjust.” See Perez v.

Arredondo, 452 S.W.3d 847, 860 (Tex. App.—San Antonio 2014, no pet.).

       Curtin contends Casillas admitted Dents N Dings negligently trained Poindexter because

Casillas testified: (1) Dents N Dings’ business model required its employees to drive vehicles; (2)

a reasonably prudent owner of such a business would have policies, procedures, and training in

place regarding defensive driving and accident avoidance techniques; and (3) Dents N Dings failed

to have such policies, procedures, and training. However, Curtin does not argue or cite to any
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evidence showing Poindexter would have avoided the collision with Curtin had Dents N Dings

had policies, procedures, or training on defensive driving and accident avoidance techniques. In

other words, Curtin failed to prove Dents N Dings’ omission was a cause of the collision. See

Mason, 143 S.W.3d at 798.

       During his testimony, Casillas disputed that having such training would have prevented the

accident. He also testified Poindexter was already a trained, experienced driver. We hold Curtin

has failed to demonstrate that the jury’s no-liability findings as to Dents N Dings are so against

the great weight and preponderance of the evidence that they are clearly wrong and unjust.

                                    MITIGATION INSTRUCTION

       Over Curtin’s objection, the trial court included the following mitigation instruction before

the questions on damages in the jury charge:

       Do not include any amount for any condition resulting from the failure, if any,
       of . . . Curtin to have acted as a person of ordinary prudence would have done under
       the same or similar circumstances in caring for and treating his injuries, if any, that
       resulted from the occurrence in question.

Curtin argues on appeal, as he did in the trial court, there is no evidence to support the submission

of the mitigation instruction.

       “We review the trial court’s submission of instructions and jury questions under an abuse

of discretion standard.” Bexar Cty. Appraisal Dist. v. Abdo, 399 S.W.3d 248, 257–58 (Tex. App.—

San Antonio 2012, no pet.). “The trial court must submit questions, instructions and definitions

which are raised by the pleadings and the evidence.” Hygeia Dairy Co. v. Gonzalez, 994 S.W.2d

220, 224 (Tex. App.—San Antonio 1999, no pet.) (citing TEX. R. CIV. P. 278). “The mitigation of

damages doctrine requires an injured party to exercise reasonable care to minimize its damages, if

the damages can be avoided with only slight expense and reasonable effort.” Harris County v.

Smoker, 934 S.W.2d 714, 721 (Tex. App.—Houston [1st Dist.] 1996, writ denied). “A mitigation


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                                                                                       04-17-00123-CV


of damages instruction is proper when the negligence complained of merely contributed to or

added to the extent of the losses or injuries, but has no part in causing the incident in question.”

Hygeia Dairy Co., 994 S.W.2d at 224. There must be “some evidence in the record from which

the jury can make a reasoned calculation about losses from [a] failure to mitigate.” Id. at 226. “[A]

plaintiff’s own evidence can be used to provide the requisite framework.” Id. at 225.

       Curtin notes a mitigation instruction is appropriate when there is evidence of negligence

on the part of the plaintiff in: (1) not consulting a doctor; (2) not consulting a doctor as soon as a

reasonable person would; (3) not following the advice of a doctor; or (4) not properly caring for

and treating injuries that do not require the attention of a doctor. See Smoker, 934 S.W.2d at 721

(citing Moulton v. Alamo Ambulance Serv., Inc., 414 S.W.2d 444, 450 (Tex. 1967)). He argues

there is no evidence of any of these specific failures. However, “[o]ther examples of a plaintiff’s

failure to mitigate may include not obtaining surgery or other treatment, delay in obtaining

treatment, failure to seek continued care, or failure to obtain care from conventional or qualified

sources.” John A. Day, Intangible Damages for Injury to Elderly Persons, 5 AM. JUR. PROOF OF

FACTS 3d 323 (1989). To support a mitigation instruction, the evidence need only show the injured

party failed to exercise reasonable care to minimize his damages, “if the damages can be avoided

with only slight expense and reasonable effort.” See Smoker, 934 S.W.2d at 721.

       Curtin asserts there is “no evidence that any of the damages were increased due to [his]

lack of diligence . . . or that the amount of medical expenses were increased due to a failure by

[him] to mitigate.” In his pleadings, Curtin sought to recover damages that included physical pain

caused by the accident. At trial, Curtin produced evidence showing he was in pain, he had received

numerous forms of treatment for the pain, and that because none of the treatments were successful,

his treating physician recommended a minimally invasive surgery that was expected to reduce

Curtin’s physical pain. Curtin testified he delayed the surgery multiple times and, at the time of
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trial, he still had not had the recommended surgery. We hold the evidence supported the trial

court’s submission of the mitigation instruction. See id.

                                                    DAMAGES

         Curtin’s remaining issues challenge the jury’s damages findings. The jury found $12,500

in past medical care expenses would fairly and adequately compensate Curtin. However, the jury

did not find damages for future medical care expenses, past physical pain and mental anguish,

future physical pain and mental anguish, and physical impairment sustained in the past. Curtin

challenges all of these findings as so against the great weight and preponderance of the evidence

that they are clearly wrong and manifestly unjust. 2 We apply the standards previously set forth in

reviewing a factual sufficiency challenge. See Perez, 452 S.W.3d at 860; see also Cotter & Sons,

Inc., 2017 WL 4801679, at *3.

A. Whether the $12,500 Award of Past Medical Care Expenses is Manifestly Unjust

         Curtin first argues that when being polled after the verdict, some jurors commented to

Curtin’s counsel suggesting that during deliberations, they did not follow instructions in the jury

charge in considering whether Curtin had insurance. Curtin produced the affidavit of a juror and

an affidavit from counsel about statements another juror had made, and the affidavits relayed

statements made by other jurors during deliberations. Because the affidavits did not show there

was an outside influence from anyone other than the jurors themselves, we may not consider this

evidence. See TEX. R. CIV. P. 327(b); Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 369

(Tex. 2000); Barnes v. Univ. Fed. Credit Union, No. 03-10-00147-CV, 2013 WL 1748788, at *15

(Tex. App.—Austin Apr. 18, 2013, no pet.) (mem. op.).




2
 The jury also did not find Curtin suffered any damages for physical impairment in the future and past and future loss
of earning capacity. Curtin does not challenge these findings.

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                                                                                      04-17-00123-CV


        Curtin also argues the evidence showed the reasonable amount for his past medical

expenses exceeded $92,000, the reasonableness of his past medical expenses was uncontroverted,

and the undisputed evidence showed he suffered from a congenital spinal condition that made him

more likely than others to experience physical symptoms resulting from a minor spinal

impingement. In support of this argument, Curtin relies not only on the testimony of witnesses,

but also on an affidavit filed under section 18.001 of the Texas Civil Practice & Remedies Code

as to the reasonableness of his medical expenses. However, “[a]ffidavits submitted pursuant to

section 18.001 are not conclusive as to the amount of damages, but merely ‘sufficient evidence to

support a finding of fact.’” Barrajas v. VIA Metro. Transit Auth., 945 S.W.2d 207, 209 (Tex.

App.—San Antonio 1997, no writ) (quoting TEX. CIV. PRAC. & REM. CODE ANN. § 18.001(b)

(West 2014)). Because Curtin’s section 18.001 affidavit is not conclusive, we turn to the witness

testimony upon which Curtin relies.

        Curtin relies on testimony from his expert witnesses, who testified about Curtin’s past

medical expenses. Curtin argues his expert witnesses’ testimony establishes “that as a result of this

wreck the reasonable and necessary medical treatment and reasonable cost associated with the

medical treatment incurred in the past totaled more than $92,000.00.” He also emphasizes that his

expert witnesses’ testimony was uncontroverted. “A jury may choose to be guided by expert

testimony on damages, but it is not bound by it.” Id. “In fact, the jury may disbelieve a witness,

including a physician, even though his testimony is not contradicted.” Id. Curtin’s arguments

regarding the jury’s finding of $12,500 for his past medical care expenses are foreclosed by the

prior decisions of this court. See, e.g., id.

        “The trier of fact is given wide discretion to award damages anywhere within the range of

evidence presented at trial.” Pope v. Gaffney, No. 04-03-00456-CV, 2004 WL 1732325, at *2

(Tex. App.—San Antonio Aug. 4, 2004, no pet.) (mem. op.). We “may not set aside a finding of
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                                                                                                 04-17-00123-CV


damages merely because the jury’s reasoning in arriving at the amount is unclear.” Id. Here, the

jury awarded $12,500 even though the jury was presented with evidence that Curtin’s past medical

expenses totaled approximately $92,000. As discussed at length in the following section, the issue

of whether Curtin sustained an injury as a result of the accident was heavily disputed, and

appellees’ experts testified Curtin did not suffer any bodily injury as a result of the car accident.

The jury’s award of $12,500 for past medical care is therefore within the range of evidence, and

the amount of damages the jury awards based on the evidence is uniquely within the jury’s

discretion. See id. at *2-4 (upholding $646 award of past medical expenses when evidence showed

actual expenses were $8,700 and plaintiff had preexisting spinal condition). We overrule Curtin’s

challenge to the jury’s finding of $12,500 in past medical care expenses.

B. Whether the $0 Findings for Other Damages Elements Are Manifestly Unjust

        In addition to arguments substantially similar to those raised in his challenge to the past

medical care expenses finding, 3 Curtin argues the jury could not have rationally found damages

for past medical expenses and found $0 for other elements of damages. He also argues that when

there is objective evidence of an injury, a jury must award some amount of compensatory damages

for pain and suffering.

        “[W]hether to award damages and how much is uniquely within the factfinder’s

discretion.” Ruffin v. Sanchez, No. 04-16-00759-CV, 2017 WL 4014651, at *3 (Tex. App.—San

Antonio Sept. 13, 2017, no pet.) (mem. op.) (quoting Golden Eagle Archery, Inc., 116 S.W.3d 757,

772 (Tex. 2003)). A “jury must judge the credibility of the witnesses, assign the weight to be given

to witness testimony, and resolve any conflicts or inconsistencies in the evidence.” Id. (citing

Barrajas, 945 S.W.2d at 209)). When there is uncontroverted evidence of an objective physical


3
 In challenging the jury’s finding regarding future medical expenses, Curtin makes the similar arguments as in his
challenge to the finding of past medical expenses, with which we decline to agree.

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injury, the factfinder cannot simply disregard the evidence. Sansom v. Pizza Hut of E. Tex., Inc.,

617 S.W.2d 288, 294 (Tex. Civ. App.—Tyler 1981, no writ). Conversely, when the evidence of

an objective injury is disputed, or the plaintiff’s claim of pain and suffering is based only the

plaintiff’s subjective complaints, the jury is not bound to accept the plaintiff’s claim. See id.

(discussing DuPree v. Blackmon, 481 S.W.2d 216, 221 (Tex. Civ. App.—Beaumont 1972, writ

ref’d n. r. e.) (Keith, J., concurring)). This court has previously rejected the argument that an award

of damages for past medical care is inherently inconsistent with awarding $0 for other elements.

See, e.g., Rios v. Texas Dep’t of Mental Health & Mental Retardation, 58 S.W.3d 167, 171-72

(Tex. App.—San Antonio 2001, no pet.) (stating there is no inherent conflict in such cases because

a jury could find damages to compensate for diagnostic testing and doctors’ visits and also find

there was no injury sustained). Curtin does not argue that our prior decision should be disturbed.

        Furthermore, Curtin’s evidence regarding his injuries was based either on his own

subjective complaints or on disputed evidence of an objective injury. It was undisputed at trial that,

at the scene of the accident, Curtin had no objectively observable injuries, such as cuts or bruises,

he denied being injured, and he refused emergency medical treatment. There is also evidence that

within a couple months of the accident, Curtin flew in an airplane to Puerto Rico for vacation and

went snorkeling and boating. In the years between the accident and trial, Curtin obtained a job as

a sports coach and delayed having back surgery several times. Conversely, Curtin relies on

evidence that is based wholly on his subjective complaints of pain or tests conducted long after the

accident. For example, in his reply brief, Curtin cites to a litany of instances when he complained

of pain, reported pain in response to a diagnostic test, or was prescribed medication for pain that

he reported to a treating physician. He also cites to evidence that he felt pain as a result of treatment

he received. The jury was not bound to accept evidence regarding Curtin’s subjective complaints

about pain. See Sansom, 617 S.W.2d at 294.
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       And although Curtin’s medical experts testified about an objective injury, that testimony

was controverted by the testimony of appellees’ medical experts. Curtin cites to the testimony of

his treating physician, Dr. Gerardo Zavala, that Curtin’s MRIs showed an impingement on Curtin’s

nerve and the testimony of another medical expert Dr. Christine Vidouria. But appellees’ medical

expert Dr. Michael Albrecht testified Curtin’s MRIs were normal, reflected no trauma or acute

issues, and showed minor disc bulges that can be considered normal and cause no symptoms. Dr.

Albrecht also testified the lumbar x-rays taken on the day of the accident were normal, and there

was no indication of nerve root compression. He further testified the development of Curtin’s

subjectively reported pain symptoms were inconsistent with acute trauma that would be caused by

a car accident. Appellees’ other medical expert, Dr. Arthur Cortez, also testified there was “nothing

wrong” with Curtin’s spine. Curtin argues appellees’ experts lacked enough expertise to opine

about his injury, but he did not move to exclude the expert witness testimony as unreliable, his

arguments on appeal about the experts’ testimony relate to the credibility of the expert witnesses,

and we must defer to the jury’s role to resolve issues of witness credibility. See Ruffin, 2017 WL

4014651, at *3. On this record, we cannot say the jury’s damages findings are clearly wrong,

manifestly unjust, or against the great weight and preponderance of the evidence. See id.

                                           CONCLUSION

       We affirm the trial court’s judgment.

                                                   Luz Elena D. Chapa, Justice




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