Opinion issued August 18, 2015




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                             NO. 01-14-00598-CV
                          ———————————
                        JOHANNA DABBS, Appellant
                                      V.
                      VINCENT CALDERON, Appellee


                  On Appeal from the 333rd District Court
                           Harris County, Texas
                     Trial Court Case No. 2011-76748


                        MEMORANDUM OPINION

      This is a personal-injury negligence case. Johanna Dabbs contends that the

evidence is legally and factually insufficient to support (1) the trial court’s

conclusion that Dabbs negligently ran a red light and (2) damages for physical
pain, mental anguish, physical impairment, and future medical expenses awarded

to Vincent Calderon. We affirm.

                                    Background

       In August 2011, a van driven by Dabbs ran a red light and crashed into two

cars. Calderon, a passenger in one of those cars, was pinned inside the wreckage.

When emergency personnel freed Calderon, they discovered that his leg had been

badly injured. Calderon was screaming in pain.

       Calderon was rushed to the hospital, where doctors discovered a fracture in

his shin bone near his knee. Doctors gave Calderon a Vicodin prescription, placed

his leg in a stabilizer, and discharged him the same day. Calderon asserts that, in

the weeks after the accident, he had to rely on family to cook for him and bathe

him.

       Three weeks later, Calderon returned to the hospital; his leg was covered in

fracture blisters. Doctors surgically attached an external fixator along the length of

his injured leg. He remained in the hospital for five days. Six months later,

Calderon had another surgery to detach the external fixator. He also attended

physical therapy three days per week from November 2011 to April 2012.

       According to Calderon, when he uses his right leg, the leg becomes painful

and his foot swells and turns blue. The leg has significantly atrophied from nonuse.

Calderon testified that this has significantly impacted his ability to do things he



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once enjoyed, like playing sports with his son. Before the accident, Calderon had

almost completed training at Texas Barber College. Because he cannot stand, he is

unable to finish his training.

      Calderon suffers from other medical conditions unrelated to the accident.

Calderon suffers from diverticulitis, a painful and chronic gastrointestinal disease.

Also, he was born with hydrocephalus, a medical condition affecting cognition and

memory. He has never been able to drive or obtain employment other than manual

labor. He has struggled most of his life to maintain employment.

      Calderon sued Dabbs for negligently running the red light. The case was

tried to the bench. At trial, Calderon contended that Dabbs ran the light because

she was not paying attention. Dabbs contended that she could not stop at the red

light because her brakes failed.

      The trial court returned a verdict in Calderon’s favor and awarded him

damages for past and future medical expenses, physical pain and mental anguish,

physical impairment, and disfigurement. Dabbs timely appealed.

                                       Negligence

      In her first issue, Dabbs challenges the legal and factual sufficiency of the

evidence that she acted negligently.




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A.    Standards of review

      1.    Legal-sufficiency standard

      “A party will prevail on its legal-sufficiency challenge of the evidence

supporting an adverse finding on an issue for which the opposing party bears the

burden of proof if there is a complete absence of evidence of a vital fact or if the

evidence offered to prove a vital fact is no more than a scintilla.” Waste Mgmt. of

Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 156 (Tex. 2014).

The evidence is legally sufficient if it “would enable reasonable and fair-minded

people to reach the verdict under review.” City of Keller v. Wilson, 168 S.W.3d

802, 827 (Tex. 2005); see Waste Mgmt of Tex., 434 S.W.3d at 156. When

reviewing a legal-sufficiency challenge, we consider all of the evidence supporting

the judgment, “credit[ing] favorable evidence if reasonable jurors could, and

disregard[ing] contrary evidence unless reasonable jurors could not.” City of

Keller, 168 S.W.3d at 827. We consider the evidence in the light most favorable to

the findings and indulge every reasonable inference that would support them. Id. at

822; see Zenner v. Lone Star Striping & Paving L.L.C., 371 S.W.3d 311, 314 (Tex.

App.—Houston [1st Dist.] 2012, pet. denied).

      2.    Factual-sufficiency standard

      To prevail on a factual-sufficiency challenge when an opposing party has the

burden of proof, the complaining party must show that the adverse finding is “so



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against the great weight and preponderance of the evidence as to be clearly wrong

and unjust.” Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); accord Cain v. Bain,

709 S.W.2d 175, 176 (Tex. 1986). In conducting a factual-sufficiency review, “we

consider and weigh all of the evidence supporting and contradicting the challenged

finding.” McMahon v. Zimmerman, 433 S.W.3d 680, 691 (Tex. App.—Houston

[1st Dist.] 2014, no pet.); accord Ortiz, 917 S.W.2d at 772; Cain, 709 S.W.2d at

176.

B.     Legal sufficiency

       It is undisputed that Dabbs’s vehicle entered the intersection on a red light,

as reflected in the police report. Dabbs contends that the accident was unavoidable

because her brakes failed; Calderon contends that Dabbs ran the red light because

she was not paying attention. See Ashman v. Smith, 389 S.W.2d 509, 512 (Tex.

Civ. App.—Houston 1965, no writ) (“If a party is unable to avoid a violation and

has not wrongfully placed himself in a position that brings such inability about, he

is excused insofar as civil liability is concerned.”).

       Enough evidence was presented to support a finding that Dabbs was

negligent. According to Calderon’s sister, Mayra Sierra, Dabbs said at the scene

that she was distracted by a crying child in her van. At trial, Dabbs conceded that

she did not know the traffic light’s color as she approached the intersection. And

although Dabbs blamed the accident on malfunctioning brakes, her brakes passed



                                            5
inspection a few weeks before the accident. She presented no evidence of brake

problems before the accident, break repairs after the accident, or expert testimony

supporting her brake-failure theory. Moreover, Calderon testified that the back of

Dabbs’s van rose, as though the brakes were engaging, just before the collision.

      This evidence would enable a reasonable and fair-minded jury to conclude

that the accident was caused by inattentiveness and not faulty brakes. Thus, this is

legally sufficient evidence that Dabbs was negligent.

C.    Factual sufficiency

      Next, we address Dabbs’s factual-sufficiency challenge. As we have already

mentioned, Calderon adduced evidence that Dabbs was “distracted,” and Dabbs

conceded that she did not know the color of the traffic light. At trial, Dabbs

insisted that the accident was unavoidable because “I tried to stop my vehicle by

depressing the brakes and the car didn’t stop.” Dabbs adduced no evidence of a

brake failure other than her own testimony. Therefore, the determination of

whether the accident was unavoidable is solely a question of witness credibility.

But the factfinder “is the sole judge of witnesses’ credibility, and it may choose to

believe one witness over another; a reviewing court may not impose its own

opinion to the contrary.” Reliant Energy Servs., Inc. v. Cotton Valley Compression,

L.L.C., 336 S.W.3d 764, 781–82 (Tex. App.—Houston [1st Dist.] 2011, no pet.).

We will not disturb the trial court’s decision to place greater weight on the



                                         6
testimony supporting negligence. See Boyd v. Palmore, 425 S.W.3d 425, 431 (Tex.

App.—Houston [1st Dist.] 2011, no pet.).

      We conclude that the evidence is both legally and factually sufficient to

support the trial court’s judgment that Dabbs negligently caused the accident.

Accordingly, we overrule Dabbs’s first issue.

                                     Damages

      In her second issue, Dabbs challenges the legal and factual sufficiency of the

evidence supporting the trial court’s various damages awards.

A.    Standards of review

      1.    Legal-sufficiency standard

      The standard for determining whether there is legally sufficient evidence to

support recovery for a challenged category of damages is the same standard used in

any other legal-sufficiency review: “[W]e sustain a legal-sufficiency challenge to

an adverse finding if our review of the evidence demonstrates a complete absence

of a vital fact, or if the evidence offered is no more than a scintilla.” Burbage v.

Burbage, 447 S.W.3d 249, 259 (Tex. 2014).

      2.    Factual-sufficiency standard

      “In addition to the legal sufficiency of evidence, we have recognized an

imperative that appellate courts determine whether any evidence supports the

amount of jury damages.” Id. (citing Bentley v. Bunton, 94 S.W.3d 561, 606 (Tex.



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2002)). “The standard of review for an excessive damages complaint is factual

sufficiency of the evidence.” Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406

(Tex. 1998). “The court of appeals should employ the same test for determining

excessive damages as for any factual sufficiency question.” Id. We set aside the

challenged award “only if it is so contrary to the overwhelming weight of the

evidence that the verdict is clearly wrong and unjust.” Id. at 407.

B.    Physical pain and mental anguish

      Dabbs argues that the evidence is legally and factually insufficient to support

the trial court’s award of $250,000 for past mental anguish and physical pain and

$75,000 for future mental anguish and physical pain.

      1.     Physical pain and mental anguish defined

      Mental anguish is a “relatively high degree of mental pain and

distress . . . . [It is] more than mere disappointment, anger, resentment or

embarrassment, although it may include all of these.” Parkway Co. v. Woodruff,

901 S.W.2d 434, 444 (Tex. 1995). “There must be both evidence of the existence

of compensable mental anguish and evidence to justify the amount awarded.”

Hancock v. Variyam, 400 S.W.3d 59, 68 (Tex. 2013). “Texas has authorized

recovery of mental anguish damages in virtually all personal injury actions.”

Johnson v. Methodist Hosp., 226 S.W.3d 525, 529 (Tex. App.—Houston [1st Dist.]

2006, no pet.) (citing Krishnan v. Sepulveda, 916 S.W.2d 478, 481 (Tex. 1995)).



                                          8
“This is because, ‘[w]here serious bodily injury is inflicted, . . . we know that some

degree of physical and mental suffering is the necessary result.’” Id. (quoting City

of Tyler v. Likes, 962 S.W.2d 489, 495 (Tex. 1997)). “Even when an occurrence is

of the type for which mental anguish damages are recoverable, evidence of the

nature, duration, and severity of the mental anguish is required.” Serv. Corp. Int’l

v. Guerra, 348 S.W.3d 221, 231 (Tex. 2011); see Fifth Club, Inc. v. Ramirez, 196

S.W.3d 788, 797–98 (Tex. 2006). “Damages for future mental anguish are

recoverable only if there is a reasonable probability that they will be suffered in the

future.” Hicks v. Ricardo, 834 S.W.2d 587, 590 (Tex. App.—Houston [1st Dist.]

1992, no writ).

      In personal-injury cases, plaintiffs may also recover for physical pain. Past

physical pain may be shown by direct testimony or circumstantially. See Prescott

v. Kroger Co., 877 S.W.2d 373, 376 (Tex. App.—Houston [1st Dist.] 1994, writ

denied); Figueroa v. Davis, 318 S.W.3d 53, 62 (Tex. App.—Houston [1st Dist.]

2010, no pet.). Damages for future physical pain are recoverable if a jury could

reasonably infer that the plaintiff will feel physical pain in the future. See

Figueroa, 318 S.W.3d at 63–64; see also Hicks, 834 S.W.2d at 590.

      Mental anguish and physical pain are often combined, as here, into a single

element of damages. See Texas Pattern Jury Charges—General Negligence &

Intentional Personal Torts (2010), PJC 15.3 & cmt.; see also Figueroa, 318 S.W.3d



                                          9
at 58. When there is one combined award for mental anguish and physical pain,

“[s]ufficient evidence of either . . . physical pain or . . . mental anguish could

support the award.” Figueroa, 318 S.W.3d at 63.

      2.     Past physical pain and mental anguish

      The trial court awarded $250,000 in past mental anguish and physical pain.

Dabbs admits that “Calderon presented evidence to support an award of damages

for past physical pain.” However, she contends that the combined award for past

physical pain and mental anguish is excessive. We disagree.

      After the accident, Calderon testified that the “front dash was smashed

down” over his right leg, pinning him inside the car. He described himself as

“hysterical,” “panicky,” and “petrified.” He was also in “pain that I never endured

in my life.” Calderon’s sister, Sierra, testified that Calderon was “freaking out” and

screaming in pain while pinned inside the wreckage and during the ambulance ride

to the hospital. Calderon’s mother, Maria, testified that when she met Calderon at

the hospital “[h]e was crying . . . . He was in a lot of pain.”

      Calderon introduced Houston Fire Department records from the crash. The

first responders recorded Calderon’s condition: “Severe pain to [right] knee

. . . . [L]ower leg found to be deformed, with redness and swelling . . . . [Calderon]

began to hyperventilate on scene [and] had carpal spasms.” On a one-to-ten scale,

the first responders rated Calderon’s apparent pain a ten.


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      Doctors determined that Calderon fractured his upper shin bone. According

to Maria, Calderon’s leg was placed in a stabilizer with steel bars running from his

thigh to his ankle. After Calderon came home, he relied on Maria for

“[e]verything. Cooked for him. Help him bathe. Help him go to the

restroom . . . . Help him get dressed.” Calderon testified that “at that time I did

need help because I couldn’t wipe myself . . . . I wasn’t able to sit down to use the

restroom . . . . [I]t was humiliating.”

      Three-and-a-half weeks later, Calderon returned to the hospital because,

according to Maria, “the pain was too much for him.” His leg was covered in

fracture blisters. The next morning, doctors surgically attached an external fixator

to Calderon’s leg. He described the device as having “pins that go into the side [of

the leg]. You have to keep adjusting them and adjusting them. You have these

holes that, you know, it oozes out mucus, blood . . . . And it was very painful.” The

device extended from Calderon’s ankle to his “high thigh.”

      Calderon remained in the hospital for five days. Maria testified that

Calderon continued to feel pain after he returned home despite taking prescription

pain killers. Several days later, he passed out in his bath tub from high blood

pressure caused by his pain.

      Several months later, Calderon underwent another surgery to remove the

external fixator. Although the fixator has been removed, significant metal



                                          11
hardware remains in his leg. He attended physical therapy for four months;

Calderon and Maria testified that physical therapy caused yet more pain.

       At trial, almost three years after the accident, Calderon reported that he

cannot stand for very long without swelling and pain in his right leg. If he stands

too long, his right foot turns blue. The trial court observed several scars on

Calderon’s right leg and estimated at least one to be six to eight inches long.

Calderon’s right leg has significantly atrophied from nonuse.

       Calderon has a four year old son. He told the court that he is depressed and

bothered because “I can’t do the things that I want to do with him” such as hold

him or play sports with him.

       Before the accident, Calderon had almost completed training at Texas

Barber College. Because he is now unable to stand, he has not been able to

complete his training or make money cutting hair. Calderon testified that “[i]t

bothers me a lot” to have put so much time and effort into learning to cut hair but

be unable to pursue that goal. He has been unable to secure employment and told

the court, “It bothers me tremendously just because—I mean, who doesn’t want to

provide for their family or their child . . . . I can’t.”

       Dabbs offers several reasons why this is insufficient evidence of past mental

anguish and physical pain. First, with respect to mental anguish, she contends that

Calderon did not prove “anything more than mere worry, anxiety, vexation, or



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anger” and “did not provide direct evidence of the nature, duration, or severity of

his anguish.” But the testimony of Calderon’s panic at the accident, the humiliation

of his inability to care for himself, the frustration of being unable to finish his

education or play sports with his son, and the shame of being unable to provide for

his family is evidence of the nature, duration, and severity of his anguish.

      Dabbs further contends that the award is excessive because the evidence

shows that other circumstances contributed to Calderon’s pain and anguish.

Calderon has suffered from hydrocephalus, a medical condition affecting cognition

and memory, since birth. He has never been able to drive or obtain employment

other than manual labor. In addition, after the accident, he was diagnosed with

diverticulitis, a painful and chronic gastrointestinal disease. Maria testified that

Calderon has undergone several surgeries for his diverticulitis, after which she

cared for him (although he did not need the comprehensive care required after the

accident). She also testified that Calderon’s diverticulitis has added to his

despondence.

      While Calderon has suffered pain and mental anguish from medical

conditions unrelated to his leg injury, the evidence also shows a high degree of past

physical pain from the leg injury, the two leg surgeries, and physical therapy.

Walking and standing are still painful for Calderon. The evidence also shows a

high degree of past mental anguish from this injury, including being unable to care



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for himself or complete barber college. This is legally and factually sufficient

evidence of past physical pain and mental anguish.

      3.     Future physical pain and mental anguish

      The trial court awarded $75,000 in future physical pain and mental anguish.

Dabbs admits that “some amount of money may be appropriate to compensate for

future physical pain.” However, she contends that the combined award for future

physical pain and mental anguish is excessive. We disagree.

      Dabbs re-marshals her arguments against past physical pain and mental

anguish here. First, with respect to mental anguish, she contends that Calderon did

not prove “a high degree of mental pain and distress” and “did not introduce direct

evidence of the nature, duration, or severity of his anguish.” However, Calderon

adduced evidence that many of the circumstances causing his past physical pain

and mental anguish will likely continue or reoccur in the future. Calderon testified

that, almost three years after his injury, he still cannot stand or walk for very long

without pain and swelling. The trial court observed that his injured leg has severely

atrophied from nonuse. Calderon testified that he still has metal hardware inside

his leg and introduced x-rays showing a system of plates and screws attached to his

shin and knee bones. Calderon also testified that he will need surgery to replace or

update this hardware. Maria testified that, according to Calderon’s doctors, “[t]here




                                         14
would be surgeries in the future. And he would always have . . . follow-up care

because of the hardware that was in his knee, a lot of plates and screws and metal.”

      As discussed, the evidence supports the conclusion that Calderon’s past

medical care resulted in pain and anguish; accordingly, evidence that Calderon will

need similar additional medical care, including more surgery, in the future is some

evidence of the probable nature, duration, and severity of future pain and anguish.

Likewise, the evidence that, almost three years after the injury, Calderon’s leg has

atrophied despite physical therapy, he is still largely unable to walk, he will likely

require additional surgery, and his leg continues to hurt and swell is some evidence

that his condition, and the resulting physical pain and mental anguish, will persist.

See Hicks, 834 S.W.2d at 591–92 (“[I]t is inconsistent to find past mental anguish,

as the jury did, but not future mental anguish, when the same circumstances that

produced at least some of the previous mental anguish are likely to recur.”). This is

evidence of the nature, duration, and severity of his future pain and anguish.

      Second, Dabbs argues that the award is excessive because much of

Calderon’s future physical pain and mental anguish are attributable to his other

medical conditions, not his leg injuries. While the evidence suggests that Calderon

will feel future physical pain and mental anguish from medical conditions

unrelated to the accident, it also suggests that his leg injuries will cause him

additional future pain and anguish. Calderon’s leg and foot pain, the anguish of



                                         15
being unable to walk or stand for very long, and the threat of future leg surgery are

the result of his leg injuries, not his other medical conditions. Thus, the evidence is

legally and factually sufficient to support the court’s award for future physical pain

and mental anguish.

C.     Future medical expenses

       The trial court awarded $25,000 in future medical expenses. To recover for

future medical expenses, “the plaintiff must present evidence to establish that in all

reasonable probability, future medical care will be required and the reasonable cost

of that care.” Rosenboom Mach. & Tool, Inc. v. Machala, 995 S.W.2d 817, 828

(Tex. App.—Houston [1st Dist.] 1999, pet. denied). The factfinder may rely “on

the injuries suffered, the medical care rendered before trial, the progress toward

recovery under the treatment received, and the condition of the injured party at the

time of trial.” Id.

       Dabbs asserts that this case is similar to Rosenboom. There, the plaintiff

fractured her vertebrae and received extensive medical care, but she presented no

evidence of the future ramifications of her injury except that she was continuing to

feel back pain. Id. We concluded that “there was no testimony establishing that in

all reasonable probability [the plaintiff] would require future medical care and the

cost of such care. Absent this testimony, the evidence was legally insufficient to

support the jury’s award of $10,000 for future medical care and expenses.” Id.



                                          16
      Unlike the plaintiff in Rosenboom, Calderon adduced evidence of a

reasonable probability that he would require future medical care and the cost of

such care. As we discussed in our analysis of future physical pain and mental

anguish, Calderon adduced evidence, including x-rays, that he still has significant

metal hardware inside his leg and will likely require follow-up care and future leg

surgery. He also testified that he still struggles with high blood pressure, caused by

his pain, which has already caused his to black out at least once. Calderon asked

the court to use his past medical expenses—$162,135.60—to estimate his future

medical expenses.

      Given the chronic nature of Calderon’s injuries, the likelihood of future

surgery on his leg, and the size of the medical costs already incurred, we find that

the evidence is legal and factually sufficient to support $25,000 in future medical

expenses.

D.    Physical impairment

      Next, Dabbs contends that the trial court’s award of $50,000 for past

physical impairment and $25,000 for future physical impairment is not supported

by legally or factually sufficient evidence.

      “In order to recover damages for physical impairment, ‘the effect of any

physical impairment must be substantial and extend beyond any pain, suffering,

mental anguish, lost wages or diminished earning capacity.’” Doctor v. Pardue,



                                          17
186 S.W.3d 4, 18 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (quoting

Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 772 (Tex. 2003)). “[L]oss

of enjoyment of life fits best among the factors a factfinder may consider in

assessing damages for physical impairment.” Golden Eagle, 116 S.W.3d at 772.

But “[t]he courts of appeals have recognized that physical impairment can

encompass economic as well as noneconomic damages.” Id. at 765.

      Dabbs suggests that the physical-impairment award plus the mental-anguish

and physical-pain award amounts to double recovery. We disagree. First, Calderon

did not seek recovery for lost wages or lost earning capacity and physical

impairment. Rather, he just sought physical-impairment damages, which may

include economic losses. Id. Although Calderon had not maintained steady

employment before the accident due to his other medical conditions, he had almost

completed his barber training. A physical-impairment award associated with his

inability to enter his chosen profession could not be duplicative of lost wages or

lost earning capacity, which he did not seek.

      Second, Calderon adduced evidence that, separate from his physical pain

and mental anguish, his enjoyment of life has been and will be diminished as a

result of his injuries. See Figueroa, 318 S.W.3d at 65 (loss of enjoyment of life, if

separate from mental anguish and physical pain, is recoverable under physical

impairment). He cannot stand for very long and tires quickly from walking. This



                                         18
limits his enjoyment of many everyday leisure activities, such as taking walks in

his neighborhood and playing sports.

         While the evidence strongly suggests that Calderon’s employability and

enjoyment of life are limited by other medical conditions unrelated to the accident,

there is also evidence that his limited ability to walk or stand, which is the result of

the accident, has limited his enjoyment of life even more. Accordingly, the

evidence is legally and factually sufficient to support the court’s award of past and

future physical impairment.

         We conclude that the evidence is legally and factually sufficient to support

each challenged element of damages. Accordingly, we overrule Dabbs’s second

issue.

                                      Conclusion

         We affirm the judgment of the trial court.




                                                Harvey Brown
                                                Justice

Panel consists of Justices Jennings, Bland, and Brown.




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