Opinion filed August 31, 2015




                                      In The


        Eleventh Court of Appeals
                                    __________

                                No. 11-13-00247-CV
                                    __________

   TIMOTHY GARRETT LANE AND CHOAT ENTERPRISES,
                  INC., Appellants
                                         V.
     SILVERIO MARTINEZ, II AND DIANA MARTINEZ,
INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE
    OF SILVERIO MARTINEZ, III, DECEASED, Appellees


                     On Appeal from the 70th District Court
                             Ector County, Texas
                       Trial Court Cause No. A-133,142


                                   OPINION
      Appellees, Silverio Martinez, II and Diana Martinez, filed suit against
Appellants, Timothy Garrett Lane and his former employer, Choat Enterprises, Inc.,
alleging wrongful death and survival claims arising from the death of their twenty-
eight-year-old son, Silverio Martinez, III, in an automobile accident. The jury found
that the accident was caused by Lane’s negligence, and it awarded damages to
Appellees on their claims. The trial court entered judgment in accordance with the
jury’s verdict. In this appeal, Appellants challenge the factual sufficiency of the
evidence to support the damages awarded by the jury to Appellees for past and future
mental anguish and for past and future loss of companionship and society.
Appellants also contend that Appellees’ counsel made improper and incurable jury
arguments and that the trial court committed evidentiary error. We affirm in part
and reverse and remand in part for a new trial.
                                 Background Facts
      On February 8, 2012, at about 5:45 p.m., Silverio Martinez, III (Silver)
traveled in his car in the westbound lane of State Highway 302, near Kermit, Texas.
Lane traveled in a pickup that was owned by his employer, Choat, in the eastbound
lane of the same highway. Lane crossed the center stripe of the highway in an effort
to pass another vehicle, entered the westbound lane, and hit Silver’s car head-on.
Silver died on impact.
      Silverio and Diana, in their individual capacities and as representatives of
Silver’s estate, brought a wrongful death and survival suit against Lane and Choat.
Norma Jimenez also brought a wrongful death claim against Lane and Choat.
Jimenez alleged that she was Silver’s surviving spouse. In this opinion, we will
sometimes refer to Silverio, Diana, and Jimenez collectively as the “Plaintiffs.” The
Plaintiffs alleged negligence and gross negligence claims against Lane and Choat.
Specifically, the Plaintiffs alleged that Lane was in the course and scope of his
employment with Choat at the time of the accident and that, therefore, Choat was
vicariously liable for Lane’s negligence under the doctrine of respondeat superior.
The Plaintiffs also asserted direct negligence claims against Choat, based on
allegations that Choat negligently hired Lane and negligently allowed Lane to


                                          2
operate the pickup. The Plaintiffs sought to recover actual and exemplary damages
from Lane and Choat.
        At the outset of the trial, Choat stipulated that Lane was acting in the course
and scope of his employment when the accident occurred. Based on this stipulation,
Choat agreed that it was vicariously liable for the negligence of Lane, if any, that
proximately caused the accident. See Baptist Mem’l Hosp. Sys. v. Sampson, 969
S.W.2d 945, 947 (Tex. 1998) (under the doctrine of respondeat superior, an
employer is vicariously liable for the negligence of an employee acting within the
scope of his employment, although the employer has not personally committed a
wrong).
        The Plaintiffs called Lane as a witness. When asked about the accident, Lane
refused to testify and, instead, invoked his Fifth Amendment privilege against self-
incrimination. The Plaintiffs presented evidence related to the accident through the
testimony of other witnesses. Jimenez testified and presented other witnesses in an
attempt to establish that she was Silver’s common-law wife at the time of his death.
Lane and Choat vigorously contested liability for the accident and Jimenez’s claim
that she was Silver’s common-law wife. Silverio and Diana testified about the
relationships they had with Silver before he died and how Silver’s death had affected
them.
        After the parties concluded their presentation of evidence, the trial court
granted directed verdicts in favor of Choat and Lane on the Plaintiffs’ gross
negligence claims. The trial court also granted a directed verdict in favor of Choat
on the Plaintiffs’ direct negligence claims against Choat. Thus, the only negligence
question that the trial court submitted to the jury was, “Did the negligence, if any, of
Timothy Lane proximately cause the occurrence in question?” The jury answered
the question, “Yes.” The trial court also submitted the question, “Were Silverio
Martinez, III and Norma Jimenez married at the time of Silverio Martinez, III’s
                                           3
death?” The jury answered the question, “No.” The damages question with respect
to Jimenez’s claim was conditioned on a “Yes” answer to the marriage question.
Accordingly, the jury did not answer the damages question that related to Jimenez’s
claim.
         The jury awarded pecuniary damages to Silverio and Diana as follows:
(1) $5,500 each to Silverio and Diana for pecuniary loss sustained in the past and
(2) $50,000 each to Silverio and Diana for pecuniary loss that, in reasonable
probability, would be sustained in the future. The jury awarded non-pecuniary
damages to Silverio and Diana as follows: (1) $234,250 each to Silverio and Diana
for loss of companionship and society sustained in the past; (2) $234,250 each to
Silverio and Diana for loss of companionship and society that, in reasonable
probability, would be sustained in the future; (3) $234,250 each to Silverio and
Diana for mental anguish sustained in the past; and (4) $234,250 each to Silverio
and Diana for mental anguish that, in reasonable probability, would be sustained in
the future. The jury awarded survival damages to Silverio, as the representative of
Silver’s estate, in the amount of $15,000 for Silver’s funeral and burial expenses. In
total, the jury awarded damages of $2,000,000 to Silverio and Diana. This amount
included $1,874,000 in wrongful death non-pecuniary damages—a total of $937,000
each to Silverio and Diana for non-pecuniary damages. Based on the jury’s verdict,
the trial court rendered judgment that Silverio and Diana, individually and as
representatives of Silver’s estate, recover from Lane and Choat, jointly and
severally, the amount of $2,058,439.55. This figure included prejudgment interest
in the amount of $58,439.55. The trial court also rendered judgment that Jimenez
take nothing by her claims against Lane and Choat.
                                        Issues
         Appellants present four issues for review. In their first issue, Appellants
contend that the evidence was factually insufficient to support the jury’s awards of
                                          4
damages to Silverio and Diana for past and future loss of companionship and society
and for past and future mental anguish. In their second issue, Appellants assert that,
because the jury’s awards on the above elements of damages were not supported by
factually sufficient evidence, the trial court erred by refusing to suggest a remittitur.
Appellants contend in their third issue that the Plaintiffs’ counsel made several
“improper, highly prejudicial and incurable jury arguments” that probably caused
the rendition of an improper verdict and that had a probable effect on the jury’s
damages findings. In their fourth issue, Appellants assert that the trial court erred in
excluding evidence that Silverio, Diana, and Jimenez entered into a distribution
agreement in which they agreed to share the proceeds of any recovery in this case.
            Factual Sufficiency of the Evidence of Non-Pecuniary Damages
      At the time of trial, Silverio was sixty years old, and Diana was fifty-four
years old. Diana had serious medical problems and became disabled before Silver
died. She had numerous back surgeries. She had a hearing problem that required
her to wear hearing aids. Diana was treated for depression for several years before
Silver died. Silverio and Diana had four children: Silver, Norma, Jacob, and Belen.
Silver died the day before his twenty-ninth birthday. Silver did not have any
children.
      Silverio testified that he had a close relationship with Silver. Silverio had
been a high school coach for more than twenty years. He had been a head soccer
coach and had coached a number of other sports during his coaching career. At the
time of trial, Silverio was the head soccer coach for the Brazosport Independent
School District. He previously coached in Uvalde, where the family lived when
Silver was in high school. Silverio coached Silver all four years that Silver attended
Uvalde High School. Silver graduated from Uvalde High School.
      In 2006, Silver bought a house in Freeport. Silverio accepted his coaching
employment job with the Brazosport ISD. At that time, Silverio and Diana moved
                                            5
from Uvalde to Freeport and lived with Silver in his house. Silver wanted the entire
family to live in his house. In 2010, Silver moved to Odessa for an employment
opportunity with Sun Electric. However, he still considered his house in Freeport to
be his home. Silverio and Diana continued to live in Silver’s house. After Silver
moved to Odessa, he gave Silverio and Diana $500 a month to apply to the mortgage
payment of his house. Silverio and Diana continued to live in Silver’s Freeport
house at the time of trial.
      Silverio said that, after Silver moved to Odessa, he and Silver talked to each
other or texted each other just about every day. Silverio said that he and Silver were
“always constantly talking.” They talked about how Silver was doing at work.
Silver talked about what he wanted to do in the future. Silver always asked Silverio
how he and Diana were doing. Silverio and Silver also talked about Jimenez and
her children.
      After Silver moved to Odessa, he visited Silverio and Diana in Freeport almost
every month. Silverio testified that Silver visited them over Thanksgiving in 2011.
Silver told Silverio about a job offer that he had received from Bird Electric. Silverio
advised Silver to take the job. Silver followed Silverio’s advice and accepted the
offer. Silver named his parents as beneficiaries on the life insurance policy that he
received through his employment with Bird.
      Silverio said that Silver was very outgoing, was a “go-getter,” and had a bright
future ahead of him. Silverio testified that he and Silver both had commercial
driver’s licenses. Silverio said that he and Silver had “plans and dreams of working
together” after Silverio retired from coaching. Silver hoped to one day own his own
trucking or construction company and wanted Silverio to work with him. Silverio
said that he and Silver enjoyed working on cars together. They also went hunting
together.


                                           6
       Silverio last talked with Silver the day before Silver died. On the day of the
accident, Silverio’s high school boys’ soccer team had a game in Victoria, Texas.
After the game, Silverio drove the team home in the team bus. Silverio received a
telephone call on his cell phone during the trip home. He noticed that the caller
identification on his cell phone said “DPS.” He stopped the bus and called the
number. A DPS Trooper answered the call. The trooper said that he was at
Silverio’s house in Freeport and that nobody was answering the door. The trooper
wanted to talk to Silverio. Silverio told the trooper that he was more than an hour
away from Freeport. Silverio asked the trooper whether he could tell him what the
call was about on the phone. The trooper said that he would rather talk to Silverio
in person. The trooper told Silverio to call him when Silverio got home. Silverio
called his daughter, Norma, and asked her to check on Diana at the house. Norma
arrived at the house to check on Diana and determined that Diana was okay.
      Silverio called the trooper when he got home. The trooper told Silverio that
he was going to send another trooper to the house. About thirty minutes later, the
trooper and two Freeport police officers arrived at the house. The trooper told
Silverio, Diana, and Norma that Silver had been involved in a head-on automobile
collision near Kermit and that Silver had passed away. Silverio testified that he,
Diana, and Norma were “all crying” and that Diana started getting chest pains. The
police called emergency personnel to the scene, and the personnel examined Diana.
The emergency personnel advised Silverio to call them back if Diana’s condition
worsened.
      Silverio testified that he and Diana “haven’t been the same” ever since Silver’s
death. He said that “[i]t’s just been so hard.” Silverio said that Diana has been
“holding on” and was “[h]eavily depressed.” He said that “she has it even harder,
because since she doesn’t work because she’s disabled, she’s at home. I mean, that’s
all she thinks about.” He said Silver’s death had been “real hard” on both of them.
                                          7
Silverio said that “it’s just unbearable” and that “[he] wouldn’t wish this on [his]
worst enemy.”
      Diana testified that Silver always had a smile on his face and that he never
liked to see anybody sad. She said that Silver loved children and that “he would
have been the best father and grandfather in the world.” Diana testified that, when
Silver saw her, he “would come and hug [her] and he would just squeeze the air out
of [her], and [she] would have to push him away so [she] could take a deep breath.”
She said that, if Silver were still alive, she would never push him away again.
      Diana was at home on the day of Silver’s accident. She testified that she did
not hear the trooper knock on the door because she had taken her hearing aids out.
She said that, when the trooper told them about Silver’s death, she kept asking the
trooper over and over whether he was sure about the wreck. Diana said that she had
“nightmares of [Silver] crying as if he was a little boy, telling me help me, Mommy.
Help me.” Diana also said that she wanted to die so that she could see Silver. She
said that she was “just waiting to die.”
      Adolfo Gonzales was Silver’s supervisor at Bird Electric and at a prior job.
Gonzales testified that Silver talked with him about Silverio and Diana. Gonzales
said that Silver talked a lot about Silverio. Gonzales believed that Silver had a close
relationship with Silverio.
      We review an excessive damages complaint for factual sufficiency of the
evidence. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex. 1988);
Thomas v. Uzoka, 290 S.W.3d 437, 454 (Tex. App.—Houston [14th Dist.] 2009, pet.
denied). In a factual sufficiency review, we are to consider and weigh all of the
evidence both supporting and contradicting the finding in question. Plas-Tex, Inc. v.
U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). We will set aside the finding
only if the evidence supporting it is so weak or so against the overwhelming weight
of the evidence that the finding is clearly wrong and unjust. Dow Chem. Co. v.
                                           8
Francis, 46 S.W.3d 237, 242 (Tex. 2001); Cain v. Bain, 709 S.W.2d 175, 176 (Tex.
1986).
      In wrongful death cases, mental anguish damages and loss of companionship
and society damages both compensate for noneconomic losses. Moore v. Lillebo,
722 S.W.2d 683, 687 (Tex. 1986). However, these two elements of damages are
separate and do not overlap. Id.; Thomas, 290 S.W.3d at 455. In wrongful death
cases, mental anguish is the emotional pain, torment, and mental suffering that the
plaintiff experienced as a result of the death of a family member. Plasencia v.
Burton, 440 S.W.3d 139, 148 (Tex. App.—Houston [14th Dist.] 2013, no pet.);
Thomas, 290 S.W.3d at 455.        Damages for mental anguish are intended to
compensate the beneficiary for the deleterious effect that the wrongful death had on
the beneficiary. Moore, 722 S.W.2d at 688; Thomas, 290 S.W.3d at 455. To recover
for mental anguish, a claimant must demonstrate a high degree of mental suffering
beyond disappointment, anger, resentment, or embarrassment, although mental
anguish may include all these emotions. Thomas, 290 S.W.3d at 455. Proof of
mental anguish can include painful emotions such as grief, severe disappointment,
indignation, wounded pride, despair, public humiliation, or a combination of any or
all of those feelings. Id.
      By contrast, damages for loss of companionship and society are intended to
compensate the beneficiary for the positive benefits flowing from the love, comfort,
companionship, and society that the beneficiary would have received had the
decedent lived. Moore, 722 S.W.2d at 687–88; Thomas, 290 S.W.3d at 455. Thus,
while mental anguish emphasizes the negative impact that the wrongful death had
on the beneficiary, loss of companionship and society focuses on the removal of
positive benefits that the beneficiary once enjoyed but which were taken away by
the wrongful death. Moore, 722 S.W.2d at 688; Plasencia, 440 S.W.3d at 148.
Although mental anguish is distinguishable from loss of companionship and society,
                                         9
the jury may consider some of the same factors in awarding damages for both of the
elements. Those factors include (1) the relationship between the decedent and the
beneficiary, (2) the living arrangements of the parties, (3) any absence of the
deceased from the beneficiary for extended periods, (4) the harmony of family
relations, and (5) the parties’ common interests and activities. Moore, 722 S.W.2d
at 688; Thomas, 290 S.W.3d at 456.
      The nebulous issues of mental anguish and loss of companionship and society
are “inherently somewhat imprecise.” Thomas, 290 S.W.3d at 454. Because these
damages are unliquidated and incapable of precise mathematical calculation, the jury
is given significant discretion in fixing the amount of the award. Id. However, that
discretion is limited. Saenz v. Fid. & Guar. Ins. Underwriters, 925 S.W.2d 607, 614
(Tex. 1996); see Plasencia, 440 S.W.3d at 148.
      Appellants rely heavily on the Texas Supreme Court’s opinion in Saenz in
making their factual sufficiency challenge to the jury’s non-pecuniary damage
awards.   Saenz involved a claim against a workers’ compensation carrier for
wrongfully inducing a settlement with the claimant. Saenz, 925 S.W.2d at 608. The
jury found that the plaintiff suffered damages of $50,000 for past mental anguish
and $200,000 for future mental anguish. Id. at 613–14. As noted by the court, the
only evidence supporting any recovery for mental anguish was a single question and
answer where the plaintiff indicated that she worried a lot about being able to pay
for her house because of her loss of income. Id. at 614. The court stated as follows
in reaching its decision:
             Not only must there be evidence of the existence of compensable
      mental anguish, there must also be some evidence to justify the amount
      awarded. We disagree with the court of appeals that “[t]ranslating
      mental anguish into dollars is necessarily an arbitrary process for which
      the jury is given no guidelines.” While the impossibility of any exact
      evaluation of mental anguish requires that juries be given a measure of
      discretion in finding damages, that discretion is limited. Juries cannot
                                         10
       simply pick a number and put it in the blank. They must find an amount
       that, in the standard language of the jury charge, “would fairly and
       reasonably compensate” for the loss. Compensation can only be for
       mental anguish that causes “substantial disruption in . . . daily routine”
       or “a high degree of mental pain and distress.” There must be evidence
       that the amount found is fair and reasonable compensation, just as there
       must be evidence to support any other jury finding. Reasonable
       compensation is no easier to determine than reasonable behavior—
       often it may be harder—but the law requires factfinders to determine
       both. And the law requires appellate courts to conduct a meaningful
       evidentiary review of those determinations.
Id. (alterations in original) (emphasis added) (citations omitted).
       The supreme court revisited its holding in Saenz in Bentley v. Bunton, 94
S.W.3d 561, 605–07 (Tex. 2002), a plurality opinion.1 Bentley was a defamation
case brought by a public official. 94 S.W.3d at 566–67. The jury found damages of
$7,000,000 for mental anguish and $150,000 for damages to character and
reputation. Id. at 605. The court noted that noneconomic damages “cannot be
determined by mathematical precision; by their nature, they can be determined only
by the exercise of sound judgment. But the necessity that a jury have some latitude
in awarding such damages does not, of course, give it carte blanche to do whatever
it will . . . .” Id. The court continued:
       [U]nder our common law the latitude necessarily accorded a jury in
       assessing non-economic damages does not insulate its verdict from
       appellate review for evidentiary support. Just as a jury’s prerogative of
       assessing the credibility of evidence does not authorize it to find
       liability when there is no supporting evidence or no liability in the face
       of unimpeachable evidence, so a large amount of mental anguish
       damages cannot survive appellate review if there is no evidence to
       support it, or a small amount of damages when the evidence of larger
       damages is conclusive. The jury is bound by the evidence in awarding
       damages, just as it is bound by the law.


       1
         As subsequently noted by the supreme court in Hancock v. Variyam, 400 S.W.3d 59, 66 (Tex.
2013), this portion of the court’s opinion in Bentley is a plurality opinion.

                                               11
Id. at 605–06. The court stated that the courts of appeals are authorized to determine
whether damage awards are supported by insufficient evidence—that is, whether the
amount of damages awarded are excessive or unreasonable. Id. at 606. The court
concluded in Bentley that there was no evidence to support the jury’s determination
that the plaintiff suffered $7,000,000 in mental anguish damages. Id. at 607. In
reaching this holding, the court noted that the amount awarded by the jury for mental
anguish damages was over forty times more than the amount it awarded for damages
to the plaintiff’s reputation. Id. Thus, under Bentley and Saenz, there must be both
evidence of the existence of compensable non-pecuniary damages and evidence to
justify the amounts awarded. Hancock v. Variyam, 400 S.W.3d 59, 68 (Tex. 2013)
(citing Bentley, 94 S.W.3d at 606; Saenz, 925 S.W.2d at 614).
      Appellants focus their challenge on the factual sufficiency of the evidence
supporting the amounts found by the jury for non-pecuniary damages. The supreme
court recently addressed the evidentiary standard applicable to the amounts awarded
for non-pecuniary damages. Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill,
Inc., 434 S.W.3d 142, 153 (Tex. 2014). Citing the Restatement (Second) of Torts
section 905, the court stated that “non-pecuniary damages do not require certainty
of actual monetized loss. Instead, they are measured by an amount that ‘a reasonable
person could possibly estimate as fair compensation.’” Id. (footnote omitted)
(quoting RESTATEMENT (SECOND) OF TORTS § 905 cmt. i (1979)).
      Appellants contend that the jury in this case violated Saenz’s prohibition of
simply picking numbers and putting them in the blanks. Choat’s counsel presented
this argument at the hearing on the motion for new trial when he argued: “The jury
went back and clearly picked a number of $2,000,000 in less than a[n] hour. Backed
out 111,000 in support, 15,000 in funeral expenses and then divided that by eight
and came up with the exact same amount for eight different damage claims,
234,500.” Appellants also rely heavily on the opinion from the Beaumont Court of
                                         12
Appeals in Hawkins v. Walker to support their argument that the evidence was
factually insufficient to support the jury’s awards of non-pecuniary damages to
Silverio and Diana. Hawkins v. Walker, 238 S.W.3d 517, 527 (Tex. App.—
Beaumont 2007, no pet.).
      In Hawkins, the jury awarded a total of $1,700,000 in damages to a mother for
past and future mental anguish and for past and future loss of companionship and
society arising from the death of her twenty-six-year-old daughter. Id. at 519–20.
The total amount included awards of $500,000 for past loss of companionship and
society, $500,000 for future loss of companionship and society, $500,000 for past
mental anguish, and $200,000 for future mental anguish. Id. at 520. The trial court
entered a judgment based on the jury’s verdict. Id. The Beaumont Court of Appeals,
in a two-to-one decision, held that the evidence was factually insufficient to support
the jury’s damage awards to the mother for mental anguish and loss of
companionship and society. Id. at 532. Therefore, the court reversed the trial court’s
judgment in favor of the mother and remanded the mother’s claims to the trial court
for a new trial. Id. at 520.
      The court in Hawkins began its analysis by noting that the matter of whether
factually sufficient evidence supports the damages awarded by the jury for non-
pecuniary losses is a difficult question. Id. at 526–27. As stated by the court: “A
court that reduces a jury’s damage award faces criticism that it is not sympathetic to
the loss suffered by the survivors. On the other hand, jury verdicts perceived as
being excessive result in legislative efforts to cap the amounts that can be awarded
in judgments, regardless of the damage suffered by the victim.” Id. at 527. The
court additionally noted that the remedy that allows a parent to recover non-
pecuniary damages for the death of a child is a relatively recent one. Id. (citing
Sanchez v. Schindler, 651 S.W.2d 249, 251 (Tex. 1983)).


                                         13
      In Hawkins, during the last few years of the daughter’s life, the mother and
daughter saw each other several times a week and frequently talked with each other
on the telephone. Id. at 525. They ate together several times a week. Id. The mother
occasionally went shopping with her daughter, bought groceries for her daughter,
paid her daughter’s bills, and took her daughter to doctor’s appointments. Id. The
mother learned of her daughter’s death during a telephone call. Id. at 525–26. She
said that she could not believe she would never see her daughter again. Id. at 526.
The mother testified that, when she learned of her daughter’s death, she began
screaming and could not stop. Id. The mother said that she loved her daughter very
much, that she missed her daughter, and that she thought about her daughter every
day. Id.
      The court in Hawkins explained that, while there was evidence that the mother
and the decedent had a loving relationship, there was no testimony that the mother
was dependent on the decedent or that the mother continued to suffer a severe grief
reaction after her initial shock from learning of the decedent’s death. Id. at 527. The
court found it significant that there was no evidence that the mother suffered from
depression as a result of her daughter’s death, that the mother required any medical
treatment to cope with her daughter’s death, that the mother could no longer work
as a result of her daughter’s death, or that the daughter’s death significantly
interfered with the mother’s daily activities. Id. The court noted the absence of
evidence that the mother missed any work or changed her daily activities as a result
of her daughter’s death, that the mother was financially dependent on her daughter,
or that the mother relied on the daughter for any advice or household services. Id.
      The Hawkins court then conducted a thorough examination of Texas and Fifth
Circuit cases that involved factual sufficiency challenges to jury awards of non-
pecuniary damages in wrongful death cases. Id. at 527–31. The court stated that
“[it had] located only one case in which a Texas appellate court affirmed a jury award
                                          14
of more than $300,000 for a parent when the evidence did not include testimony
consistent with the conclusion that the parent suffered severe mental anguish or
severe grief because of the child’s death.” Id. at 527–28. The court noted that
“[t]here are reported Texas cases that affirm wrongful death awards for non-
pecuniary damages of up to $300,000 when the evidence showed a close relationship
but did not show any significant interference in the wrongful death beneficiary’s
daily activities.” Id. at 528. The Hawkins court explained that the Fifth Circuit had
affirmed large non-pecuniary damage awards when the testimony demonstrated “a
severe depressive reaction lasting an unusually long time.” Id. at 530. However, the
court also noted that the Fifth Circuit had reversed such awards “when the evidence
showed only a loving relationship between the decedent and the survivor.” Id. at
529. The court stated that, “[i]n our view, testimony that proves the beneficiary
suffered severe mental anguish or severe grief should be a significant and sometimes
determining factor in a factual sufficiency analysis of large non-pecuniary damage
awards.” Id. at 532.
      The court in Hawkins determined that Saenz requires appellate courts “to
conduct a meaningful review of a jury’s non-pecuniary damage awards in a wrongful
death case, which, in turn, requires evidence ‘that the amount found is fair and
reasonable compensation.’” Id. at 531 (quoting Saenz, 925 S.W.2d at 614). The
court additionally determined that “large non-pecuniary damage awards” required
proof that the wrongful death beneficiary suffered severe mental anguish or severe
grief. Id. at 532. The court concluded that the evidence, which consisted of the
mother’s testimony “that she had a close and loving relationship with [her daughter]
and ate with [her daughter] regularly” was insufficient to support the jury’s
$1.7 million award of non-pecuniary damages because there was insufficient
evidence to establish that the mother suffered severe emotional trauma that resulted
in a lengthy depression or other severe secondary reaction or that the daughter’s
                                         15
death resulted in a serious and permanent interference with the mother’s daily
activities. Id.
       Appellants assert that the evidence in this case is similar to the evidence in
Hawkins. In reliance upon this assertion, Appellants contend that there was factually
insufficient evidence to surpass the evidentiary threshold required for large non-
pecuniary damage awards. They state that, “while there is some evidence (similar
to Hawkins) that [Silverio and Diana] had a loving relationship with Decedent, who
was one of their several children, there is insufficient evidence to establish that [they]
had severe emotional trauma that resulted in other severe secondary reactions.”
Appellants assert that, similar to Hawkins, there was no evidence that Silver’s death
resulted in a serious and permanent interference with either Silverio’s or Diana’s
daily activities, that either Silverio or Diana sought counseling or medical treatment
to cope with Silver’s death, or that Silverio or Diana suffered from depression
attributable to Silver’s death.
       The evidence in this case is distinguishable from Hawkins. In this case, the
evidence showed that Silverio and Diana had close relationships with Silver and that
they had suffered enormous grief and would continue to suffer grief as a result of
Silver’s death. Silverio and Diana lived with Silver a number of years in Freeport
before he moved to Odessa. After he moved, he returned to Freeport approximately
once a month to visit his parents. Silverio and Silver communicated with each other
on an almost daily basis. Silverio and Diana both testified about the profound impact
that Silver’s death has had on their lives. Silverio testified that “we haven’t been the
same ever [since Silver died],” that “[i]t’s just been so hard,” that Diana had been
“[h]eavily depressed,” that Silver’s death had been harder on Diana because “she’s
at home [and] that’s all she thinks about,” that “it’s just unbearable,” and that “[he]
wouldn’t wish this on [his] worst enemy.” Diana testified that she had “nightmares
of [Silver] crying as if he was a little boy, telling [her] help me, Mommy,” that she
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wanted to die so that she could see Silver, and that she was “just waiting to die.”
The evidence supports a conclusion that Silverio and Diana both suffered and would
continue to suffer severe grief as a result of Silver’s death.
       Accordingly, the evidence in this case was stronger than the evidence in
Hawkins to support the jury’s large non-pecuniary damage awards.2 Our inquiry
does not end at this point, however, because we must still conduct a “meaningful
evidentiary review” of the amounts found by the jury for non-pecuniary damages.
Saenz, 925 S.W.2d at 614. We must review the factual sufficiency of the evidence
supporting the jury’s awards of non-pecuniary damages to determine if the awards
constitute what a reasonable person could possibly estimate as fair compensation to
Silverio and Diana. Waste Mgmt., 434 S.W.3d at 153. Appellants contend that the
jury simply picked numbers and put them in the blanks in violation of Saenz’s
prohibition of this practice. We agree.
       As noted previously, one justice filed a dissenting opinion in Hawkins.
Justice Kreger opined that the jury did not “simply pick a number and put it in the
blank” because it awarded different amounts for past mental anguish damages versus
future mental anguish damages. Hawkins, 238 S.W.3d at 534–35. We agree with
Justice Kreger that a jury’s act of awarding different damage amounts for different
damage elements supports a conclusion that the jury did not randomly award
damages in a case. We addressed a similar situation in Service Corp. International v.
Aragon, 268 S.W.3d 112, 121–22 (Tex. App.—Eastland 2008, pet. denied). We
concluded that it was “evident that the jury did not simply pick numbers at random
but gave careful consideration” to its award of past and future mental anguish
damages because it awarded different amounts for different claimants. Id. at 121.


       2
        For the purposes of our analysis, we will use the same amount of $300,000, as used by the court
in Hawkins, as the threshold amount for large non-pecuniary damage awards in a wrongful death case.


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We noted that the jury in Aragon distinguished between different plaintiffs and that
it awarded higher damages to the plaintiff that was most obviously impacted. Id.
We also noted that Aragon did not involve pecuniary damages to use as a benchmark
for assessing the non-pecuniary damages. Id.
      The challenged non-pecuniary damage awards in this case consist of eight
damage “blanks” wherein the jury filled in the same amount: $234,500. The eight
blanks pertained to the following damage items:
      1.    Silverio’s loss of companionship and society sustained in the past;
      2.    Diana’s loss of companionship and society sustained in the past;
      3.    Silverio’s loss of companionship and society that will be sustained in
            the future;
      4.    Diana’s loss of companionship and society that will be sustained in the
            future;
      5.    Silverio’s mental anguish sustained in the past;
      6.    Diana’s mental anguish sustained in the past;
      7.    Silverio’s mental anguish that will be sustained in the future;
      8.    Diana’s mental anguish that will be sustained in the future.
      As determined by the jury, Silverio and Diana suffered the same amount of
non-pecuniary damages.      Additionally, their respective damages for loss of
companionship and society were the same as their respective mental anguish
damages, and the past component of these damages was the same as the future
component of these damages. Unlike the jury in Aragon, it appears that the jury in
this case did not give careful consideration to each of the damage elements but,
rather, picked a number at random and just filled in the blanks. This conclusion is
bolstered by the fact that the jury awarded a “round” number of $2,000,000 in total
damages calculated by subtracting the pecuniary damages that it awarded and then
dividing the remainder by eight.
      We also have an award of pecuniary damages in this case to use as a
benchmark. The jury awarded Silverio and Diana pecuniary damages of $55,500


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each.3 The jury’s award of $937,000 each to Silverio and Diana for non-pecuniary
damages is almost seventeen times more than their respective award of pecuniary
damages. This large ratio of non-pecuniary damages to pecuniary damages, coupled
with the large amount of non-pecuniary damages awarded in this case when
compared to other reported cases, and the apparent act of the jury of simply picking
a number and putting it in the blanks lead us to the conclusion that the jury’s awards
of non-pecuniary damages is not supported by factually sufficient evidence. The
jury’s awards do not constitute what a reasonable person could possibly estimate as
fair compensation to Silverio and Diana—had the jury considered the non-pecuniary
damage elements separately as required by the court’s charge.
        Appellants contend that the jury “was more likely than not influenced by”
improper closing arguments and the trial court’s evidentiary error.4 Appellants
continue that, “[t]o that end, the record demonstrates that the jury’s award of non-
pecuniary damages . . . was more likely than not arrived at by some improper motive
such as passion, prejudice or speculation.” We would additionally note that the jury
may have been influenced by damage evidence presented on behalf of Jimenez, who
sought loss of Silver’s future earning capacity in the approximate amount of
$2,000,000. We sustain Appellants’ first issue.
                                                Remittitur
        In their second issue, Appellants argue that the trial court erred in refusing to
suggest a remittitur of the non-pecuniary damages awarded to Silverio and Diana.
Appellants additionally request a suggestion of remittitur from this court. See
TEX. R. APP. P. 46.3. Appellants contend that this court should suggest a remittitur

        The jury awarded Silver’s estate $15,000 for funeral and burial expenses under a survival cause of
        3

action. We have not included this amount in our comparative analysis because it is not a recovery by the
wrongful death claimants.
        4
         These allegations are the subject of Appellants’ third and fourth issues that we do not reach because
of our disposition on Appellants’ first issue.

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that would reduce the total amount of non-pecuniary damages awarded to Silverio
and Diana to $250,000 each.
      The standard for reviewing whether a trial court should have ordered a
remittitur is factual sufficiency. Bentley, 94 S.W.3d at 620. While a suggestion of
remittitur is appropriate to enter in cases where there is insufficient evidence to
support the full amount of a damages award, we decline to do so in this case because
there is not an appropriate remittitur amount readily determinable from the evidence
in this case. Cf. Rentech Steel, L.L.C. v. Teel, 299 S.W.3d 155, 162 (Tex. App.—
Eastland 2009, pet. dism’d). For the same reason, the trial court did not err in
denying Appellants’ requested remittitur. We overrule Appellants’ second issue.
                                     Disposition
      In light of our disposition of Appellants’ first issue, we need not address their
third and fourth issues. See TEX. R. APP. P. 47.1. Appellants request a remand solely
on the matter of Appellees’ damages. Rule 44.1(b) of the Rules of Appellate
Procedure provides that, in cases involving claims of unliquidated damages, “[t]he
court may not order a separate trial solely on unliquidated damages if liability is
contested.” TEX. R. APP. P. 44.1(b). Mental anguish damages and loss of society
and companionship damages are unliquidated damages. See Thomas, 290 S.W.3d
at 454. Appellants contested liability at trial. Under Rule 44.1(b), we would err if
we only remanded the damages part of the case. Instead, we are required to remand
the case to the trial court for a new trial on liability and damages. See JLG Trucking,
LLC v. Garza, No. 13–0978, 2015 WL 1870072, at *6 n.8 (Tex. Apr. 24, 2015) (not
yet released for publication) (“[B]ecause liability was contested in the trial court,
both liability and damages must be remanded.”); Estrada v. Dillon, 44 S.W.3d 558,
562 (Tex. 2001) (per curiam) (applying Rule 44.1(b)).
      As previously noted, the trial court granted a directed verdict in favor of
Appellants on Silverio’s and Diana’s claims for gross negligence against Choat and
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Lane and on their claims for direct negligence against Choat. Silverio and Diana
have not challenged the trial court’s judgment pertaining to these claims.
Additionally, Jimenez originally filed a notice of appeal but she later filed a motion
to dismiss her appeal. We issued an opinion and judgment on April 3, 2014, granting
her requested dismissal. Lastly, Appellants have not challenged the claim of Silver’s
estate for funeral and burial expenses. Accordingly, these portions of the trial court’s
judgment are affirmed.
      The portions of the trial court’s judgment pertaining to Lane’s direct
negligence, Choat’s vicarious liability, and Silverio’s and Diana’s damages are
reversed and remanded for a new trial.
                                   This Court’s Ruling
      We affirm the judgment of the trial court in part, reverse the judgment of the
trial court in part, and remand the cause for proceedings consistent with this opinion.




                                                      JOHN M. BAILEY
                                                      JUSTICE


August 31, 2015
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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