Affirmed as Modified and Majority and Dissenting Opinions filed April 30, 2013.




                                       In The


                     Fourteenth Court of Appeals

                                NO. 14-12-00089-CV


     HAND & WRIST CENTER OF HOUSTON, P.A. AND SCA HOUSTON
          HOSPITAL FOR SPECIALIZED SURGERY, L.P., Appellants

                                         V.


                      REPUBLIC SERVICES, INC., Appellee


                     On Appeal from the 164th District Court
                             Harris County, Texas
                       Trial Court Cause No. 2010-38689



                         DISSENTING OPINION

      The majority finds that the trial court committed reversible error because it
failed to take into account amounts paid prior to trial in calculating the
prejudgment interest. I respectfully dissent.

      First, factually, this record does not support the conclusion that the trial
court did not take those pretrial payments into account.       The jury awarded
appellants Hand & Wrist and SCA damages in the sum of $1,113.14 and
$13,017.45, respectively. The jury heard evidence of the pretrial payments and,
thus, took them into account. We cannot and do not know how the jury “took the
payments into account” in finding the amount of damages. We are not allowed to
speculate. See Drury Sw., Inc. v. Louie Ledeaux #1, Inc., 350 S.W.3d 287, 292
(Tex. App.—San Antonio 2011, pet. denied) (holding that as long as the award of
damages is within the range of evidence, “a reviewing court is not permitted to
speculate on how the jury actually arrived at its award”). What we do know,
however, is that because the jury “took the payments into account,” the trial court
took the payments into account as well when it entered judgment on the jury
verdict. Therefore, appellants’ appeal and the majority opinion are founded upon
an alleged error that cannot be established factually.

      Second, again factually, the majority asserts that there is no dispute that
Republic “owed contractual damages of $4,028.62 to Hand & Wrist and
$15,524.51 to SCA Hospital—which is the sum of the amounts Republic paid
before trial and the damages awarded by the jury.” Op. 7. This assertion is
categorically incorrect, and yet, the remainder of the majority’s analysis rests upon
the faulty premise. Appellants claimed $4,028.62 and $15,524.51 by their original
petition.   Republic never conceded that it owed $4,028.62 and $15,524.51.
Republic disputed that it owed $4,028.62 and $15,524.51. The jury did not find
that Republic owed $4,028.62 and $15,524.51. The trial judge did not award
$4,028.62 and $15,524.51. And, appellants do not assign error to the failure of the
trial court to award $4,028.62 and $15,524.51.

      Third, appellants are not entitled to prejudgment interest on $4,028.62 and
$15,524.51 as a matter of law. By definition, prejudgment interest is compensation
for the lost use of money awarded in the judgment. See Battaglia v. Alexander,
                                          2
177 S.W.3d 893, 907–09 (Tex. 2005). Again, appellants did not obtain a judgment
for $4,028.62 and $15,524.51—and they do not complain about the actual damages
awarded in the judgment in the amount of $1,113.14 and $13,017.45 But, they
want prejudgment interest on a higher amount. The only methodology by which
the trial court could have given appellants prejudgment interest on a higher sum is
additur, because the sum must be in the judgment. However, it is axiomatic that
“[w]e have no authority to employ additur.” Phi Van Cao v. Hardy, 352 S.W.3d
218, 222 (Tex. App.—Houston [14th Dist.] 2011, no pet.); see also Cressman
Tubular Prods. Corp. v. Kurt Wiseman Oil & Gas, Ltd., 322 S.W.3d 453, 462 n.7
(Tex. App.—Houston [14th Dist.] 2010, pet. denied); Aztec Corp. v. Tubular Steel,
Inc., 758 S.W.2d 793, 800 (Tex. App.—Houston [14th Dist.] 1988, no writ).

      In summary, after the jury trial in this cause, appellants moved for judgment
on the jury verdict. The trial court gave appellants a judgment on their jury
verdict. Specifically, the trial court used the jury’s answers to the pattern jury
charge on damages and entered final judgment for Hand & Wrist of $1,113.14 plus
prejudgment interest on that sum and attorney’s fees, also in the amount found by
the jury. The final judgment awarded SCA $13,017.45 plus prejudgment interest
on that sum and attorney’s fees, again in the full amount awarded by the jury. The
trial court did not have the authority to award prejudgment interest on a higher sum
and, therefore, did not err.



                                      /s/       Sharon McCally
                                                Justice


Panel consists of Justices Frost, McCally, and Busby. (Busby, J., majority).

                                            3
