Affirmed and Memorandum Opinion filed April 23, 2015.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-14-00073-CV

                         FRANK HUDSON, Appellant
                                        V.
                          LUTHER FOREST, Appellee

                    On Appeal from the 127th District Court
                             Harris County, Texas
                      Trial Court Cause No. 2011-41363

                 MEMORANDUM                      OPINION


      Appellant Frank Hudson appeals from a final take-nothing judgment
following a jury trial in which the contested issues were the cause and extent of
injuries he suffered in a car wreck with appellee Luther Forest. Hudson contends
that the evidence regarding the cause of the accident is factually insufficient to
support a finding that assigns fifty percent of the responsibility to Hudson. Hudson
also argues that the evidence is factually insufficient to support an award of zero
damages for loss of earning capacity. Because we conclude that the evidence is
factually sufficient to support the award of zero damages, we affirm the trial
court’s judgment.

                                 BACKGROUND
      On August 21, 2009, Forest’s car struck Hudson’s car in a parking lot when
Forest backed out of his parking space. At the time of the collision, Hudson was
driving through the lot looking for a parking space. Hudson alleged that the low-
speed wreck caused him to suffer a traumatic brain injury, which prevented him
from being able to work. Hudson filed suit alleging Forest was negligent and
caused the accident that resulted in his injuries. The case proceeded to a jury trial
in which the disputed issues were the cause and extent of Hudson’s alleged
personal injuries.

      Twenty days before Hudson filed his original petition, an administrative law
judge declared that Hudson was disabled under the Social Security Act and eligible
to receive Social Security disability benefits.    The judge’s disability decision
concluded that Hudson suffered from lumbar degenerative disc disease, a traumatic
brain injury, and psychological impairments. When Hudson filed for disability
benefits, he alleged that he had been disabled since the date of the accident with
Forest and not prior to that date. The administrative law judge agreed, concluding
that Hudson had been disabled, as defined in the Social Security Act, since the date
of the collision with Forest. The judge also found that “[m]edical improvement is
expected with appropriate treatment.” Because of this possible improvement, the
administrative law judge recommended that an updated disability review be
completed after 36 months.

      At trial, Hudson testified about the accident. Hudson stated that he was
looking to his right at the time of the collision because he was looking for a
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parking space. Hudson also testified that if the accident with Forest had not
occurred, he would be able to work and would be eligible for retirement after
working an additional 15 years with his current employer.               Hudson claimed,
however, that he would not be able to work during those years due to his disability.

       Hudson further testified that he had been involved in numerous accidents
prior to 2009. Hudson remembered his involvement in eight car accidents prior to
2009 and that he had complained of back injuries resulting from three of them.
Hudson was asked about two additional accidents, but he testified that he could not
remember being involved in those accidents. Hudson also testified that a 200-
pound carpet fell on him in 1989. The carpet accident caused Hudson to complain
of severe headaches and dizziness. Hudson saw numerous doctors as a result of
the carpet accident and told them he was unable to work. Several of Hudson’s
doctors disagreed about Hudson’s ability to work, however. Hudson was informed
that the carpet accident caused him to suffer “a rotary [sic] cuff tear with a pinched
nerve in between . . . .” Hudson testified that the pinched nerve caused the
headaches and dizziness he experienced as a result of the carpet accident. Hudson
also testified that he suffered a herniated disc in 2002 while lifting weights in a
gym.

       During Hudson’s testimony, he stated that he had applied for Social Security
disability benefits prior to the accident with Forest and that he was twice denied
benefits.1 Hudson testified that he was denied because of his age. Hudson also
testified, however, that when he was denied the first time because of his age,
“[t]hey stated that I did have a traumatic brain injury.”

       1
        Hudson admitted that he had applied for disability benefits a total of three times.
Hudson further admitted that his first two applications had been denied. The record does not
reveal when the first two applications and denials occurred except that they were before
Hudson’s third application.

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         Forest also testified about the accident at trial. Forest testified that he was in
a hurry and was not paying attention at the time of the collision with Hudson.
Forest went on to testify that the accident was completely his fault and that Hudson
should recover for any injuries and lost wages resulting from the accident. Forest
did not dispute the amount of Hudson’s lost wages or the fact that Hudson was
disabled under the Social Security Act.

         The trial court submitted issues of negligence, proportionate responsibility,
and damages to the jury. The jury found both Forest and Hudson negligent. On
the issue of proportionate responsibility, the jury found that Hudson and Forest
were each fifty percent responsible for the accident.           The jury awarded zero
damages to Hudson for physical pain, mental anguish, and loss of earning capacity.
The trial court then rendered a take-nothing judgment based on the jury’s verdict.
This appeal followed.

                                        ANALYSIS
         On appeal, Hudson contends that the evidence is factually insufficient to
support the jury’s findings on (1) the apportionment of responsibility between
Hudson and Forest, and (2) the jury’s award of zero damages for loss of earning
capacity. Because Hudson’s second issue is dispositive, we will address that issue
first.

I.       Standard of review
         In reviewing the factual sufficiency of the evidence, we must examine the
entire record, considering both the evidence in favor of, and contrary to, the
challenged findings. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–
07 (Tex. 1998); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). When a party
attacks the factual sufficiency of an adverse finding on which it had the burden of


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proof, it 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). When there is no objection to the charge, we measure the
sufficiency of the evidence according to the charge submitted to the jury. Garza v.
Cantu, 431 S.W.3d 96, 103 (Tex. App.–Houston [14th Dist.] 2013, pet. denied). If
we determine the evidence is factually insufficient, we must detail the evidence
relevant to the issue and state in what regard the contrary evidence greatly
outweighs the evidence in support of the verdict; we need not do so when
affirming a jury’s verdict. Gonzalez v. McAllen Med. Ctr., Inc., 195 S.W.3d 680,
681 (Tex. 2006) (per curiam).

      We are not a finder of fact. Ellis, 971 S.W.2d at 407. Accordingly, we may
not pass upon the witnesses’ credibility or substitute our judgment for that of the
jury, even if the evidence would support a different result. Id. Instead, the jury is
the sole judge of the credibility of the witnesses and the weight to be given to their
testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.
2003). When presented with conflicting evidence, a jury may believe one witness
and disbelieve others, and it also may resolve inconsistencies in the testimony of
any witness. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986).

II.   The evidence supporting the jury’s finding of zero damages is factually
      sufficient.
      In Hudson’s second issue, he contends the evidence is factually insufficient
to support the jury’s award of zero damages for loss of earning capacity. In
making this argument, Hudson points to (1) the amount of his lost wages based on
his employer’s payroll documents, and (2) the disability decision by the
administrative law judge under the Social Security Act.

      When only one category of damages is challenged on the basis that the

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award in that category was zero or was too low, we consider the evidence unique
to that category in deciding whether the award is so against the great weight and
preponderance of the evidence as to be manifestly unjust, shock the conscience, or
clearly demonstrate bias.        Golden Eagle Archery, 116 S.W.3d at 775.2                 The
plaintiff has the burden of proving loss of earning capacity. Strauss v. Cont’l
Airlines, Inc., 67 S.W.3d 428, 435 (Tex. App.–Houston [14th Dist.] 2002, no pet.).
The measure of this type of damage is the plaintiff’s diminished earning power or
earning capacity, in the past or future, directly resulting from the injuries sustained
in the accident. Id. To support an award for damages for lost earning capacity, the
plaintiff generally must introduce evidence from which a jury may reasonably
measure in monetary terms his earning capacity prior to injury. Id. at 435–436.
Specific proof of actual earnings and income are evidence of loss of earning
capacity. Id. at 436.

       Hudson contends that evidence of his lost wages supports an award for loss
of earning capacity. Hudson introduced evidence of the amount of his earnings
and income prior to the accident with Forest, less deductions for child support and
retirement. This evidence showed the amount of Hudson’s monthly salary and the
dates that Hudson missed work beginning in November 2009, following the
accident with Forest.

       Notwithstanding this evidence of the amount of lost wages, the jury could
       2
          Some courts of appeals have held that once a jury finds liability, it is presumed that
compensatory damages must be awarded if there is objective evidence of injury. See, e.g.,
Russell v. Hankerson, 771 S.W.2d 650, 652–53 (Tex. App.—Corpus Christi 1989, writ denied).
This “zero damages” rule only applies, however, when the injury is objective in nature and the
complaint on appeal concerns the jury’s failure to award non-economic damages related to the
injury. See Estrada v. Dillon, 23 S.W.3d 422, 427 (Tex. App.—Amarillo 2000), rev’d on other
grounds, 44 S.W.3d 558 (Tex. 2001). Non-economic damages include pain, suffering, mental
anguish, and disfigurement. See Golden Eagle Archery 116 S.W.3d at 763. Because Hudson’s
complaint on appeal concerns the jury’s failure to award economic damages for loss of earning
capacity, we need not address the applicability of the zero damages rule.

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have declined to award damages for lost earning capacity on the ground that
Hudson failed to carry his burden to prove that his loss resulted from this accident.
For the following reasons, we hold that a failure to find lost earning capacity
resulting from the accident is not against the great weight and preponderance of the
evidence.

      Hudson contends that the disability decision demonstrates that his loss of
earning capacity resulted from the accident with Forest. The disability decision
concludes that Hudson has been disabled, as defined in the Social Security Act,
since the date of the accident with Forest.      The disability decision does not,
however, address the question whether this accident caused Hudson’s disability.
Rather, the question before the administrative law judge was whether Hudson’s
disability caused him to be unable to work. See Briscoe ex rel. Taylor v. Barnhart,
425 F.3d 345, 351–52 (7th Cir. 2005) (discussing steps for administrative law
judge to determine whether claimant is disabled).

      Although the disability decision does mention some evidence that Hudson’s
brain injury was caused by the accident with Forest, the decision does not suggest
that Hudson’s other impairments—which included lumbar degenerative disc
disease and psychological impairments—were caused by this accident. Nor does
the disability decision address the extent to which each impairment contributed to
Hudson’s disability.

      Moreover, additional evidence not before the administrative law judge was
introduced at trial.   This evidence called into question Hudson’s theory of
causation as well as his credibility. For example, contrary to Hudson’s contention
that this accident was serious enough to cause a traumatic brain injury, there was
other evidence that the accident was minor and caused minimal vehicle damage.
The police report offered into evidence recorded that the accident occurred in a

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parking lot and the damage to both vehicles was minimal. Photographs of the
vehicles further demonstrated that vehicle damage was minimal.             From this
evidence, the jury reasonably could conclude this was a low-speed accident that
was unlikely to result in the serious injury alleged by Hudson.

      Finally, there was evidence that Hudson had a pattern of involvement in car
accidents followed by claims of injury. On cross-examination, Hudson testified
that he remembered being involved in eight car accidents prior to 2009 and he
complained of injuries resulting from three of those accidents.        Hudson also
testified that he sustained other injuries to his head and neck prior to the accident
with Forest. Hudson testified that these other injuries had healed. The disability
decision, however, provided some contrary evidence that Hudson still suffered
from injuries not attributed to this accident. Specifically, the disability decision
stated that Hudson suffered from lumbar degenerative disc disease and
psychological impairments.

      Because there were other plausible causes of Hudson’s injury, the jury was
entitled to resolve any inconsistencies in the evidence and could conclude that one
of the accidents prior to 2009 caused Hudson’s loss of earning capacity.

      Based on the record evidence presented, we hold the jury’s award of zero
damages for loss of earning capacity is not against the great weight and
preponderance of the evidence as to render it unfair or unjust. We therefore
overrule Hudson’s second issue challenging the jury’s finding of zero damages for
loss of earning capacity.

      Because our disposition of Hudson’s second issue renders immaterial
Hudson’s first issue challenging the jury’s apportionment of liability, we need not
address his first issue on appeal. See Tex. R. App. P. 47.1.


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                                 CONCLUSION
      Having overruled Hudson’s issue challenging the jury’s award of zero
damages, we affirm the trial court’s take-nothing judgment.




                                      /s/       J. Brett Busby
                                                Justice



Panel consists of Chief Justice Frost and Justices Christopher and Busby.




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