






Wyley Low v. GSU



In The


Court of Appeals


Ninth District of Texas at Beaumont


____________________


NO. 09-99-509 CV

____________________


WYLEY LOW, Appellant


V.


GULF STATES UTILITIES COMPANY, Appellee




On Appeal from the 136th District Court
Jefferson County, Texas

Trial Cause No. D-142,393




MEMORANDUM TO CLERK

	According to Tex. R. App. P. 47.3 (d), you are directed to release the opinion dated 
September 21, 2000, for publication.
	You will give notice of this memorandum to all interested parties who received a
copy of the original opinion.
	Entered this the 3rd day of June, 2002.
								PER CURIAM
 In The


Court of Appeals


Ninth District of Texas at Beaumont


____________________


NO. 09-99-509 CV

____________________


WYLEY LOW, Appellant


V.


GULF STATES UTILITIES COMPANY, Appellee




On Appeal from the 136th District Court
Jefferson County, Texas

Trial Cause No. D-142,393




O P I N I O N
	This appeal arises from a suit filed by Wyley Low against Gulf States Utilities
(GSU) alleging various claims all stemming from termination of electrical services.  GSU
pursued a counter-claim based upon fraud.  Following a jury trial, the trial court entered
a judgment from which Low appeals on six points of error.  GSU raises two cross-points
on appeal.
	Low complains, in essence, the trial court erred in failing to enter a judgment in
accordance with the jury's verdict.  GSU contends there is no evidence to support the
jury's award of damages for mental anguish and for spoilation of food.  We first address
GSU's cross-points because if they are sustained judgment would be rendered in GSU's
favor.
	In their first cross-point, GSU claims there is no evidence to support the jury's
award for mental anguish.  We disagree.
	Dr. Curtis Wills diagnosed Low as depressed.  Dr. Wills said the depression "was
long onset, but, however, obviously exacerbated by some recent experience."  According
to Dr. Wills, the problem with GSU "was very traumatic" to Low and "exacerbated the
problem."  Dr. Wills testified that in Low's mind he was dependent upon electricity, that
Low did not have a lot of coping skills and the options were very limited in his mind.  Dr.
Wills said it was apparent to him that Low's economic opportunities were almost
nonexistent, thus his options were almost nonexistent.  Dr. Wills testified "the actions in
this particular case that are before this jury disturbed Low greatly."  According to Dr.
Wills, Low has difficulty expressing  himself and "connecting all those components to the
process," in understanding that he initiated the suit that was causing him such discomfort. 
Dr. Wills said the process has resulted in Low feeling bad about himself.  Dr. Wills said
Low's ability to cope with stress was "very, very limited."  Dr. Wills testified Low's
painting and drawing were ways of coping and "[t]here is nothing trivial about it."  Dr.
Wills testified that because of this trauma, Low now has health concerns for which he
receives treatment in Galveston, lives alone, and wonders everyday whether he will have
electrical power.   
	Low testified that because the electricity was off, he missed watching the Easter
plays about Christ and religious programs.  He said that made him "feel bad, real bad." 
Low said it bothered him to be unable to paint or sketch.  Low testified, "It's worse than
I [felt] when I had my electricity cut off the first time.  I know this is going to continue
going and going.  There is no stop to it.  It's like a runaway train."  According to Low,
he was still afraid of GSU, "[m]ore afraid than them now because they are a big
corporation."  When asked about the last six and a half years since GSU decided to sue
him to cut off his electricity Low said, "It never did stop bothering me."  Low testified he
no longer goes to the utility company to pay his bill because he is afraid of them, he pays
the bill at Kroger's pay station instead.   
		In reviewing the evidence under a no-evidence point, we consider all
the evidence in the light most favorable to the prevailing party, indulging
every reasonable inference in that party's favor.  See Harbin v. Seale, 461
S.W.2d 591, 592 (Tex.1970); Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d
194, 199 (1952);  see also Transportation Ins. Co. v. Moriel, 879 S.W.2d
10, 24 (Tex.1994) ("The evidence presented, viewed in the light most
favorable to the prevailing party, must be such as to permit the logical
inference [that the jury must reach].").  "In evaluating legal sufficiency, we
are required to determine whether the proffered evidence as a whole rises to
the level that would enable reasonable and fair-minded people to differ in
their conclusions."  Moriel, 879 S.W.2d at 25. 

Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex. 1998). 
GSU did not put on a defense.  Thus the only evidence before this court is the testimony
of Dr. Wills and Low.  
	"Any party seeking recovery for mental anguish . . . must prove more than 'mere
worry, anxiety, vexation, embarrassment, or anger.'  Parkway Co. v. Woodruff, 901
S.W.2d 434, 444 (Tex. 1995).  However, proof of a physical manifestation of the
emotional distress is not required.  Krishnan v. Sepulveda, 916 S.W.2d 478, 482 (Tex.
1995)."  Stokes v. Puckett, 972 S.W.2d 921, 924 (Tex. App.--Beaumont 1998, writ
denied).  Considering the evidence in the light most favorable to the jury's verdict, we
hold it rises to the level that would enable reasonable and fair-minded people to differ in
their conclusions.  GSU's cross-point of error one is overruled.
	In their second cross-point, GSU argues there is no evidence to support the jury's
award of $100 for spoilation of food.  Low testified to the following contents of his
refrigerator when the electricity was turned off:  six turkeys, milk, a dozen eggs, a pound
of bacon, ten or twenty cans of biscuits, butter, a couple loaves of bread, preserves,
vegetables, fruit, and bottles of soda pop.  According to Low, he had so much food
because he was going to fix food for the needy and elderly on Easter.   
	GSU relies upon Thomas v. Oldham, 895 S.W.2d 352, 359 (Tex. 1995), for its
argument that there is no evidence supporting the jury's award because Low failed to prove
the difference in market value of his damaged property before and after the injury.  In
Thomas the court noted, "[t]he standard for measuring damage to personal property is the
difference in its market value immediately before and immediately after the injury, at the
place where the damage occurred."  Id.  For that proposition, the Thomas court cited
Pasadena State Bank v. Isaac, 149 Tex. 47, 228 S.W.2d 127, 128 (1950).  In Pasadena
State Bank, the court stated the general rule above and then noted, "[d]ifferent factual
situations, however, sometimes require a somewhat different yardstick to measure damages
than the one just set out.  For instance, a chattel might be totally destroyed; also, it is
conceivable that the personal property destroyed might not have a market value."  Id.  The
instant case is just such a "different factual situation."
	"The burden is on the plaintiff to establish its damages with reasonable certainty to
enable a jury to compute them."  Oryx Energy Co. v. Shelton, 942 S.W.2d 637, 642 (Tex.
App.--Tyler 1996, no writ) (citing Simpson v. Phillips Pipe Line Co., 603 S.W.2d 307,
309-10 (Tex. Civ. App.--Beaumont 1980, writ ref'd n.r.e.)).  The general rule is that
where the facts are undisputed that an injury occurred, some damages, if proved, must be
awarded by the jury.  See Tarver v. County of Jasper, 927 S.W.2d 795, 798 (Tex. App.
--Beaumont 1996, no writ).  The amount of damages awarded is normally left to the
discretion of the jury, but the jury cannot arbitrarily fix an amount of damages which is
neither fair nor just.  Id.
	GSU did not dispute the contents of the refrigerator as testified to by Low nor did
they contest that the contents spoiled.  The value of the food before it spoiled, and its
value, if any, after it spoiled, is certainly something that any juror could determine from
his or her own experience and knowledge.  The amount arrived at by the jury (GSU does
not complain it is excessive) is not unfair or unjust.  GSU's second cross-point is
overruled.
	Having found the evidence legally sufficient to support the jury's award of damages
for mental anguish and spoilation of food, we turn to Low's complaints on appeal.  The
jury made two findings of liability, they found GSU engaged in an unconscionable action
or course of action and found GSU negligent, attributing negligence to GSU at sixty
percent and to Low at forty percent.  The jury then awarded Low $100 for past spoilage
of food, $5,000 for past psychological treatment, and $20,000 for past mental anguish and 
emotional distress.  Further, the jury awarded Low $150,000 in attorney fees.
	In its judgment, the trial court found "the verdict of the jury for the Plaintiff and
against the Defendant is supported by the evidence in all respects except the award of the
jury in response to QUESTION NO. 10 Subquestion 2." (Emphasis added.)  That award
was for past psychological treatment; it was not part of the trial court's judgment and is
not contested on appeal by Low.
	The trial court's judgment awards Low only $12,100 in damages, plus pre-judgment
and post-judgment interest.  The judgment does not award Low any attorney fees and
orders the parties to bear all their own costs.  Based upon the jury's verdict, which the trial
court upheld with the sole exception noted above, (1) the judgment fails to grant Low the
relief awarded.   We consider each of his points in turn.
	Point of  error one contends the judgment should reflect no relief is to be recovered
by GSU on it's counter-claim because the jury found Low committed no fraud against
GSU.  The judgment does not grant any relief to GSU.  Point of error one is without
merit.
	In his second point of error Low claims he should recover his costs as a matter of
law because he prevailed in the jury trial.  We agree.
	GSU contends that while Low prevailed against it, Entergy was the prevailing party
against Low.  The judgment appealed from is the result of a jury trial in which Low
prevailed and GSU did not.  GSU provides this court with no authority wherein, for
purposes of assessing costs, we should consider the outcome of ancillary proceedings
involving another party in determining the "winner" of the trial.
	Rule 131 provides that the successful party to a suit recover costs from the adverse
party.  See Tex. R. Civ. P. 131. "The court may, for good cause, to be stated on the
record, adjudge the costs otherwise."  See Tex. R. Civ. P. 141.  However, the trial court
declined to  state its reasons for assessing costs contrary to the rule.  See Howell Crude Oil
Co. v. Donna Refinery Partners, Ltd., 928 S.W.2d 100, 112 (Tex. App.--Houston [14th
Dist.] 1996, writ denied).  In the absence of any explanation for its actions, the trial court
abused its discretion in assessing costs against Low.  See Newsome v. Charter Bank
Colonial, 940 S.W.2d 157, 168-69 (Tex. App.--Houston [14th Dist.] 1996, writ denied). 
Thus, the trial court's judgment should be modified to award all costs to Low.  Point of
error two is sustained.
	Point of error three argues all of the jury's award for mental anguish should have
been recovered because contributory negligence does not apply to a 1992 DTPA claim. 
This is correct.  See Act of June 14, 1989, 71st Leg., R.S., ch. 380, § 2, 1989 Tex. Gen.
Laws 1491 (amended 1995) (current version at Tex. Bus. & Comm. Code Ann. § 17.50
(Vernon Pamp. 2000)).  The jury found GSU engaged in unconscionable conduct and
under the DTPA finding, Low would be entitled to the greater recovery of $20,000, plus
"two times that portion of the actual damages that does not exceed $1,000."  Id.  
	GSU argues Low's damages are not recoverable under the DTPA absent a finding
that the act was violated knowingly.  "Pursuant to Rule 279, when there is an omitted
finding, that finding is deemed in support of the judgment if the opposing party does not
object to its omission and there is factually sufficient evidence to support the omitted
finding."  Hawthorne v. Guenther, 917 S.W.2d 924, 936 (Tex. App.--Beaumont 1996,
writ denied).  The record does not reflect GSU made any requests for or objections to the
jury charge.  GSU does not argue the evidence is factually insufficient to support a finding
of knowing, only that it was not made.  We have reviewed the record and find it is not
against the great weight and preponderance of the evidence for the jury to find GSU's
actions were willful.  See Luna v. North Star Dodge Sales, Inc., 667 S.W.2d 115, 117
(Tex. 1984) ("Mental anguish damages are recoverable when there is proof of a willful
tort, willful and wanton disregard, or gross negligence.").  Point of error three is sustained
and we reform the judgment to award Low $22,000 for mental anguish.
	Low's fourth point asserts he is entitled to recover the undisputed attorney's fees
found by the jury.  GSU contends Low is not entitled to attorney's fees because he failed
to establish any damages recoverable under the DTPA.  We have already found otherwise,
therefore, Low was entitled to reasonable attorney's fees.  See Tex. Bus. & Comm. Code
Ann. § 17.50(d) (Vernon Pamp. 2000).
	GSU alternatively argues Low is only entitled to attorney's fees in the amount of
$35,000, as reduced by the trial court.  GSU claims "this Court must find that the Trial
Court acted arbitrarily and capriciously in its reduction before it can set the reduction
aside."  However, the record contains no such "reduction." (2)  The judgment failed to award
any attorney's fees, contrary to the jury's verdict.  While GSU did raise the excessiveness
of the attorney's fees in their motion for JNOV, they do not appeal the trial court's failure
to grant that motion on cross-appeal.  Point of error four is sustained and the judgment
reformed to reinstate the jury's award of $150,000 in attorney's fees.
	Low's fifth point of error contends he is entitled to recover nominal damages for
spoilage of food caused by the wrongful termination of his electric service.  The record
reflects the jury awarded Low $100 for spoilage of food and the judgment includes that
award.  Thus Low's point of error is moot.
	In his final point, Low claims he is entitled to recover proper pre-judgment,
equitable and post-judgment interest on all his damages.  Because we have reformed the
judgment to award $22,100 in actual damages, the amount of pre-judgment interest
awarded by the trial court is incorrect.  Low is entitled to simple interest at the rate of ten
percent per annum from April 6, 1992 to June 5, 1995.  See Sample v. Freeman, 873
S.W.2d 470 (Tex. App.--Beaumont 1994, writ denied); Tex. Fin. Code Ann. § 304.105
(Vernon 1998).  We calculate that to be a total of $6,998.34 in pre-judgment interest.  
	Low further contends the trial court should award, in equity, pre-judgment interest
from October 1998, when the jury reached its verdict, to November 1999, when the trial
court finally entered judgment.  Although a review of the record does not enlighten this
court as to the cause of the delay, the briefs of both parties indicate some negotiations were
ongoing.  The record does not reflect any request for entry of judgment in the interim
between then and the actual entry of judgment.  We find Low has not satisfied his burden
to establish the trial court abused its discretion in denying an award of pre-judgment
interest from October 1998 to November 1999.  See Tex. Fin. Code Ann. § 304.108
(Vernon 1998).  That portion of point six is overruled.
	Low also argues post-judgment interest should run from the date of the jury's
verdict, and not the date judgment was actually entered.  Low provides this court with no
authority for that proposition.  We award post-judgment interest in accordance with Tex.
Fin. Code Ann. § 304.005 (Vernon 1998).  Low is entitled to interest on the entire
judgment at a rate of ten percent per annum from the day the judgment was rendered,
ending the day the judgment is satisfied, to be compounded annually.  See Tex. Fin. Code
Ann. § 304.006 (Vernon 1998).
	In summary, the judgment of the trial court is reformed to award Low $22,100 in
actual damages, $150,000 in attorney's fees, $6,998.34 in pre-judgment interest, and
costs.  In all other respects the judgment is affirmed.
	The judgment of the trial court is AFFIRMED AS REFORMED.
								PER CURIAM

Submitted on August 17, 2000
Opinion Delivered September 21, 2000
Do Not Publish 

Before Walker, C.J., Burgess and Stover, JJ.
1. The record reflects the trial court did not grant GSU's motion for judgment
notwithstanding the verdict.  Rather, the trial court's finding that the jury's verdict is
supported by the evidence is an implied denial of that motion.
2. GSU refers this court to a "letter."  Correspondence from the trial court does not
constitute an appealable order or ruling properly before this court.
