Dawson v. Briggs

OPINION

SUE WALKER, Justice.

I. Introduction

Kelly Renee Dawson appeals a $233,515.62 default judgment entered against her. In two issues, she claims that the trial court lacked jurisdiction to enter a postjudgment order granting an amendment to the return of citation and that the evidence offered at the default hearing was legally and factually insufficient to support the damage award. We will affirm in part and reverse and remand in part.

II. Factual and PROCEDURAL Background

Dawson and Appellee Carla Briggs were involved in a car accident. Dawson’s car ran into the back of Briggs’s car. Dawson’s insurance carrier paid only for Briggs’s property damage. Briggs sued Dawson, seeking to also recover personal injury damages she suffered as a result of the accident.

A private process server delivered a citation and Briggs’s lawsuit to Dawson on April 4, 2001. The return of citation indicates that the citation and Briggs’s original petition were personally served on Dawson at 4:40 p.m. at the Falls Apartments, 9001 South Normandale Street in Fort Worth, Tarrant County, Texas, at her apartment, apartment 2056. The private process server signed the return of citation, but his signature was not verified. Dawson did not file an answer to Briggs’s suit.

On March 15, 2002, the trial court conducted a default judgment prove-up hearing. On the same day, following the hearing, the trial court signed a judgment for Briggs in the amount of $233,515.62 plus prejudgment interest.

Dawson timely filed a motion for new trial, pointing out that the private process server’s signature on the return of citation was not verified. Dawson claimed that, because of this procedural defect, the trial court lacked personal jurisdiction over Dawson and argued that the default judgment should be set aside. Dawson did not deny that she was served as reflected in the return.

After Dawson filed her motion for new trial, Briggs filed a motion to amend the return of citation. Briggs requested that the trial court enter an order allowing the amendment of the return by adding the verification of the process server’s signature. The trial court conducted a hearing, and at the conclusion of the hearing, verbally denied Dawson’s motion for new trial and verbally granted Briggs’s motion to amend the return of citation. On June 7, 2002, Dawson filed a notice of appeal. On June 17, 2002, the trial court signed a written order granting Briggs’s motion to amend the return. The trial court never signed a written order denying Dawson’s motion for new trial.

III. Trial Court’s Jurisdiction

In her first issue, Dawson claims that the trial court lacked jurisdiction to order the return of citation amended. Specifically, Dawson raises the following issue:

Issue Number One

There are no presumptions of valid service in a default judgment case. The private process server’s return of citation was not verified. The trial court’s order allowing amendment of the defective citation was not signed until after the court of appeals acquired exclusive jurisdiction over the case. Was the trial court’s late order void so that the unverified return mandates reversal of the default judgment?

The standard of review paragraph in Dawson’s brief under this issue states, “The issue of whether the trial court had jurisdiction to amend the return of citation at the time the trial court signed the order purporting to do so is a question of law, subject to de novo review.” The headings in Dawson’s brief under issue one are: 1. The Standard of Review is De Novo; 2. There Are No Presumptions of Valid Service in a Default Judgment Case; 3. The Private Process Server’s Return Had to Be Verified; 4. The Trial Court Lost Jur isdiction to Mow Amendment of the Return Once Dawson Perfected This Appeal; 5. Rule 329b Plenary Power Does Not Make the Trial Court’s Late Order Valid; and 6. Rule 118 Will Not Rescue the Trial Court’s Late Order. M of this is to explain that, giving Dawson’s first issue a liberal construction, as we must, we perceive the sole issue presented to us by Dawson’s first issue to be whether the trial court possessed jurisdiction to order the return of citation amended. See Tex. R.App. P. 38.1(e), 38.9 (requiring a liberal construction of issues).

The issue of whether the trial court erred by initially granting a default judgment on an unverified private process server’s return of service is not before us. The issue of whether the trial court erred by denying Dawson’s motion for new trial raising the issue of the unverified private process server’s return of service is not before us. The issue of whether the trial court abused its discretion by granting Briggs’s motion to amend the return of citation is not before us. We will not address unassigned error. See, e.g., Am. Gen. Fire and Cas. Co. v. Weinberg, 639 S.W.2d 688, 689 (Tex.1982) (holding that the court of appeals erred by reversing the trial court’s judgment on unassigned error); Cox v. Johnson, 638 S.W.2d 867, 868 (Tex.1982) (same).

The issue before us is simply whether the trial court possessed jurisdiction to enter an order granting Briggs’s motion to amend the return of citation. Dawson contends that we review this issue as a question of law under a de novo standard of review. We agree. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998), cert. denied, 526 U.S. 1144, 119 S.Ct. 2018, 143 L.Ed.2d 1030 (1999) (applying de novo standard to question of subject-matter jurisdiction); Michel v. Rocket Eng’g Corp., 45 S.W.3d 658, 667 (Tex.App.-Fort Worth 2001, no pet.) (holding that “[w]e review all questions of law de novo”). We now turn to that issue.

Rule 118 of the Texas Rules of Civil Procedure provides:

At any time in its discretion and upon such notice and on such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.

Tex.R. Civ. P. 118 (emphasis added). The default judgment was entered on March 15, 2002. Dawson timely filed a motion for new trial on April 12, 2002. Because the trial court never signed a written order denying Dawson’s motion for new trial, it was overruled by operation of law on May 29, 2002, the seventy-fifth day following the March 15, 2002 default judgment. See Tex.R. Civ. P. 329b(c). Thus, the trial court possessed plenary power over this case through June 28, 2002, the one-hundred-fifth day following the March 15, 2002 default judgment. See Tex.R. Civ. P. 329b(e); Philbrook v. Berry, 683 S.W.2d 378, 379 (Tex.1985) (recognizing that a timely filed motion for new trial may extend the trial court’s plenary power through the one-hundred-fifth day following a final judgment). The trial court therefore possessed plenary power over the March 15, 2002 default judgment when it signed the June 17, 2002 order granting Briggs’s motion to amend the return of citation.

Dawson concedes that the order granting Briggs’s motion for amendment of the return of citation was signed during the trial court’s period of plenary power. Nonetheless, Dawson contends that the trial court lacked jurisdiction to enter its June 17, 2002 order (a) because she filed a notice of appeal on June 7, 2002, vesting exclusive jurisdiction in this court and (b) because the trial court’s plenary power is limited to the powers listed in rule 329b of the rules of procedure and those powers do not include the power to amend a return of citation. Briggs responds to Dawson’s position by pointing out that the trial court verbally granted her motion to amend the citation on May 28, 2002, ten days before Dawson filed her notice of appeal. Briggs argues that the trial court clearly possessed jurisdiction to enter an order during its plenary power formalizing a ruling it made prior to Dawson’s filing of her notice of appeal. Briggs also contends that once the trial court allowed amendment of the citation, the amendment related back to the date the original return was filed with the court so that the verified return is deemed to have been on file for nearly a year before the entry of the default judgment against Dawson.

We will first address the issue of whether Dawson’s notice of appeal, invoking the jurisdiction of this court, deprived the trial court of jurisdiction to sign its June 17, 2002 order granting Briggs’s motion to amend the return of citation. Dawson cites three cases: Ammex Warehouse Co. v. Archer, 381 S.W.2d 478, 482 (Tex.1964); Bridas Corp. v. Unocal Corp., 16 S.W.3d 887, 889 (Tex.App.-Houston [14th Dist.] 2000, pet. dism’d w.o.j.); and Atkins v. Snyder, 597 S.W.2d 779, 782 (Tex.Civ. App.-Fort Worth 1980, no writ). These cases are not applicable to the present facts. Each of these cases simply holds that, following the perfection of an appeal, the trial court cannot enter an order that interferes with the appellate court’s jurisdiction. Ammex Warehouse Co., 381 S.W.2d at 480 (explaining “[t]he Court of Civil Appeals considered this temporary order to be an interference with its jurisdiction of the case which had been invoked by giving notice of appeal from the final judgment”); Bridas Corp., 16 S.W.3d at 889 (holding that trial court possessed jurisdiction to issue anti-injunction relief following perfection of appeal because the trial court’s order did not undermine or interfere with appellate court jurisdiction or modify the final judgment); Atkins, 597 S.W.2d at 781-82 (recognizing appellate court’s authority to issue writ of prohibition to preserve subject matter of appeal because “any attempt by the trial court to force Karten to pay the disputed amount over which an appeal is pending would clearly interfere with our jurisdiction”).

The order here does not interfere with this court’s appellate jurisdiction. We have found no case law supporting the proposition that the filing of a notice of appeal deprives the trial court of jurisdiction to sign an order during its plenary power on a motion filed, heard, and verbally ruled upon prior to perfection of the appeal. We hold that the filing of a notice of appeal by Dawson did not deprive the trial court of jurisdiction to sign an order during its plenary power granting Briggs’s motion to amend the citation.

We next address Dawson’s contention that during its period of plenary power the trial court possesses only power to grant a new trial or to vacate, modify, correct, or reform the judgment. See Tex.R. Civ. P. 329b(d), (e). The Texas Supreme Court has held that the trial court may enter a postjudgment order granting amendment of a return of citation pursuant to rule 118 during its plenary power. Higginbotham v. Gen. Life and Acc. Ins. Co., 796 S.W.2d 695, 696 (Tex.1990). The trial court in Higginbotham entered a default judgment, and the defendants timely filed motions for new trial complaining that service was improper because the person served was not an officer or registered agent of the defendants. Id. Although the return indicated process was served at 12:01 p.m., it did not state that time was during the defendants’ normal business hours or that process was served at the defendants’ home office. Id.; Gen. Life and Acc. Ins. Co. v. Higginbotham, 750 S.W.2d 19, 20 (Tex.App.-Fort Worth 1988), rev’d, 796 S.W.2d 695 (Tex.1990). Following an evidentiary hearing, the trial court denied the defendants’ motions for new trial by written order. Higginbotham, 796 S.W.2d at 696. In the order denying the defendants’ motions for new trial, the trial court expressly found that the person served was an employee of the defendants and that service was proper under insurance code article 3.64, which allowed service of a domestic company by leaving a copy of process at the home office of the company during business hours. Id. This court reversed the trial court’s default judgment, holding that the record before us failed to affirmatively demonstrate proper service. 1 Higginbotham, 750 S.W.2d at 20.

The supreme court held that the recitation in the order denying the defendants’ motions for new trial indicating service was proper under insurance code article 3.64 was “tantamount to” an order amending the return of citation under rule 118 to reflect service during the defendants’ normal business hours at the defendants’ home offices. Higginbotham, 796 S.W.2d at 696. Thus, the supreme court held that, based on the amended return, the record reflected proper service. Id. The supreme court reversed this court’s judgment reversing the default judgment and affirmed the trial court’s default judgment. Id. The supreme court in Higginbotham therefore recognized that a trial court possesses jurisdiction to permit a postjudgment amendment of citation pursuant to rule 118 during its period of plenary power. Id.; see also Mylonas v. Tex. Commerce Bank-Westwood, 678 S.W.2d 519, 521-22 (Tex.App.-Houston [14th Dist.] 1984, no writ) (upholding default judgment following postjudgment amendment of the return of citation to add the word “Drive ” so that it showed service at 5271 Memorial Drive); see also Walker v. Brodhead, 828 S.W.2d 278, 281-83 (Tex.App.-Austin 1992, writ denied) (holding trial court properly allowed return of citation to be amended to add verification twenty-two months after entry of judgment); Zaragoza v. De La Paz Morales, 616 S.W.2d 295, 296 (Tex.Civ.App.-Eastland 1981, writ refd n.r.e.) (op. on reh’g) (holding that trial court could have permitted an amendment of the proof of service while it had jurisdiction, but that plaintiffs affidavit from deputy sheriff obtained on April 3, 1981 and submitted to appellate court on rehearing after issuance of court’s opinion on March 26,1981 was not proper amendment).

Dawson points out that the Texas Supreme Court wrote in Primate Construction Inc. v. Silver, “the one requesting service must amend the return prior to judgment.” 884 S.W.2d 151, 153 (Tex.1994). The supreme court did not cite any authority, neither rule 118 nor any case law, for this proposition. This statement in Primate is mere dicta because the issue of an amendment of a return of citation was not before the supreme court in Primate. Vespa v. Nat’l Health Ins. Co., 98 S.W.3d 749, 752-53 (Tex.App.-Fort Worth 2003, no pet.) (Livingston, J., concurring). The court was simply explaining the fact that rule 118 provides a remedy to a plaintiff who has improperly served a defendant. Id. Moreover, the supreme court’s statement in Primate conflicts with its holding in Higginbotham, where the supreme court reversed this court for refusing to acknowledge the trial court’s postjudgment amendment of the return of citation. Primate did not cite or overrule Higginbotham. Likewise, the case cited by Dawson for the proposition that a default judgment must be reversed if the return of citation is not verified when process is served by an authorized person did not involve any effort to amend the return under rule 118. Seib v. Bekker, 964 S.W.2d 25, 29 (Tex.App.-Tyler 1997, no writ) (reversing default judgment based on lack of verification of return of citation by private process server when “the plaintiff did not file a motion to amend the proof of service under Tex.R. Civ. P. 118”). Consequently, the facts of that case are distinguishable from the present facts where the return of citation was actually ordered amended.

Here, the trial court conducted an evidentiary hearing on Briggs’s motion to amend the return of citation. Briggs called Ernest M. Kohl, the authorized individual who served Dawson, to testify at the hearing. Kohl testified that he served Dawson as reflected in the return of citation, but admitted on cross-examination that he did not have the return verified in front of a notary when he signed it. After the parties presented evidence and arguments, the following transpired:

THE COURT: I’ve been listening to your argument, Counsel, and — and it seems to me that you have not denied the facts of service as found in the return. You’re merely saying they didn’t verify it.

[Counsel for Dawson]: That’s correct, Your Honor.

[[Image here]]

THE COURT: I guess the thing that has me kind of hung up is that there’s no contention at all that Ms. Dawson was not served, that is, that she did not know about this lawsuit for that year’s period of time between the time Mr. Kohl delivered the papers to the address shown in the return and the date of the hearing on the default motion.

Now, no motion to quash was filed.

[[Image here]]

THE COURT: ... I’m going to grant the motion to amend.

[[Image here]]

[Counsel for Dawson]: Your Honor, would you state the basis for your granting the defendant’s — the plaintiffs motion. Could I have a record on this?

THE COURT: I think the rule [118] allows for the amendment. And the amendment deals not — I’m impressed with the fact that it doesn’t deal with any of the factual assertions contained in this — in the return. It only deals with adding the verification that says all of these facts are true. So that’s basically why I’m doing it. And there’s been nothing to indicate that any of the factual assertions are not true.

The trial court signed a June 17, 2002 order granting Briggs’s motion to amend the return of citation. The order decrees that “the Officer’s Return of Citation is amended to reflect that it was verified by the person who served Defendant, Kelly Renee Dawson, with the citation.” We hold that the trial court here possessed jurisdiction to order, during its plenary power, amendment of the citation pursuant to rule 118. Tex.R. Civ. P. 118 (providing that “[a]t any time” the trial court may allow process or proof of service to be amended); see Higginbotham, 796 S.W.2d at 696 (recognizing postjudgment amend ment of citation pursuant to rule 118); Mylonas, 678 S.W.2d at 521-22 (same).

In her reply brief, Dawson claims that Briggs failed to actually amend the return of citation or alternatively, that Kohl’s subsequently filed affidavit verifying the original return is defective. The trial court’s June 17, 2002 order granting Briggs’s motion to amend the citation also effectively amended the citation. It expressly provided, “the Officer’s Return of Citation is amended to reflect that it was verified by the person who served Defendant, Kelly Renee Dawson, with the citation.” Thus, no further action by Briggs was necessary. We decline to follow Dawson’s proposition that although the trial court, after hearing Kohl’s testimony, granted Briggs’s motion to amend and decreed that the return “is amended to reflect that it was verified by the person who served [Dawson],” nonetheless some additional action by Briggs was necessary to amend the return. The trial court’s June 17, 2002 order effectively amended the return. See Higginbotham, 796 S.W.2d at 697 (indicating trial court’s order was tantamount “to an order amending return”). We overrule Dawson’s first issue. 2

IV. Sufficiency of the Evidence of Damages

In her second issue, Dawson claims that the evidence is legally and factually insufficient to support the award of $288,515.62 in damages to Briggs. Once a default judgment is taken against a non-answering defendant on an unliquidated claim, all allegations of fact set forth in the petition are deemed admitted, except for the amount of damages. Arenivar v. Providian Nat’l Bank, 23 S.W.3d 496, 497-98 (Tex.App.-Amarillo 2000, no pet.) (citing Tex. Commerce Bank, Nat’l Ass’n v. New, 3 S.W.3d 515, 516 (Tex.1999)). If the damages being claimed are unliquidated, the court rendering a default judgment must hear evidence on damages. Tex.R. Civ. P. 243; Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex.1992); Arenivar, 23 S.W.3d at 497-98. The legal and factual sufficiency of evidentiary support for the amount of unliquidated damages may be challenged on appeal. Arenivar, 23 S.W.3d at 498 (citing Otis Elevator Co. v. Parmelee, 850 S.W.2d 179, 180-81 (Tex.1993)).

When a specific attack is made upon the legal or factual sufficiency of the evidence to support the trial court’s determination of damages in a default judgment, the appellant is entitled to a review of the evidence produced. Transp. Concepts, Inc. v. Reeves, 748 S.W.2d 302, 304 (Tex.App.-Dallas 1988, no writ) (citing Rogers v. Rogers, 561 S.W.2d 172, 173-74 (Tex.1978)). In deciding a legal sufficiency challenge, we consider only the evidence and inferences which, when viewed in the fight most favorable to the judgment, tend to support the judgment; we disregard all evidence and inferences to the contrary. Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981). In determining a factual sufficiency challenge, we consider all of the evidence in order to determine if the evidence supporting the finding is so weak or the evidence to the contrary so overwhelming that the judgment should be set aside and a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

Briggs was the sole witness at the default judgment prove-up hearing. 3 The record reflects that Briggs asked the trial court to award her the following amounts:

Past lost earnings $ 25,128.00

Lost future earning capacity $ 50,000.00

Pain, suffering and mental anguish in the past $ 50,000.00

Pain, suffering and mental anguish in the future $ 25,000.00

Physical impairment in the past $ 50,000.00

Physical impairment in the future Medical expenses $ 25,000.00 $ 8,237.62

Total damages $233,515.62 4

The trial court’s judgment awards Briggs the global figure of $233,515.62 plus prejudgment interest.

Generally, when the trial court does not itemize damages in its default judgment, it is impossible to determine what portion of the damages were ascribed to each ground of recovery claimed by the plaintiff. Pentes Design, Inc. v. Perez, 840 S.W.2d 75, 80 (Tex.App.-Corpus Christi 1992, writ denied). When, however, the plaintiff specifically requests and apparently receives certain amounts for particular elements of damages in a default judgment prove-up hearing pursuant to rule 243, we may review the sufficiency of the evidence to support the specific awards requested and apparently received. Accord Balogh v. Ramos, 978 S.W.2d 696, 700 (Tex.App.-Corpus Christi 1998, pet. denied) (op. on reh’g) (recognizing that general rule not applicable when the reporter’s record reflects the amounts ascribed to each ground of recovery claimed by the plaintiff), cert. denied, 528 U.S. 822, 120 S.Ct. 66, 145 L.Ed.2d 57 (1999); Jackson v. Gutierrez, 77 S.W.3d 898, 903 (Tex.App.-Houston [14th Dist.] 2002, no pet.) (reviewing sufficiency of evidence to support claimed amounts of damages despite default judgment’s global damage award); Popkowsi v. Gramza, 671 S.W.2d 915, 918-19 (Tex.App.-Houston [1st Dist.] 1984, no writ) (reviewing sufficiency of evidence to support claimed lost profits and medical expenses despite default judgment’s global damage award). Thus, we review the legal and factual sufficiency of the evidence to support the damages requested and purportedly proved by Briggs.

A. Past Lost Earnings

Lost wages or earnings refers to the actual loss of income due to an inability to perform a specific job from the time of injury to the time of trial. Strauss v. Cont’l Airlines, Inc., 67 S.W.3d 428, 435 (Tex.App.-Houston [14th Dist.] 2002, no pet.); Border Apparel-East, Inc. v. Guadian, 868 S.W.2d 894, 897 (Tex.App.-El Paso 1993, no writ). Briggs testified that as a result of the accident she suffered pain in her head, neck, and back. Prior to the accident, Briggs had two jobs: one as an assistant with American Airlines where she worked on a less than part-time, as-needed basis and one working twenty hours a week in her husband’s office. Briggs explained that her husband is a doctor and that he paid her $9 per hour to work filing charts, pulling charts, and calling insurance companies. After the accident, Briggs was unable to perform her job working in her husband’s office. She said that after the accident, she could not bend down or look up to pull charts and could not be on the phone for extended periods because it hurt her neck. Briggs testified that, but for the wreck, she would have continued to work at her husband’s office and would have earned $25,128 between the date of the accident and the date of the default judgment hearing. Viewed in the light most favorable to the trial court’s judgment, this evidence is factually sufficient to support an award of $25,128 in past lost wages. 5 See, e.g., Transp. Concepts, Inc., 748 S.W.2d at 304.

B. Lost Future Earning Capacity

Lost earning capacity concerns the impairment to one’s ability to work. Koko Motel, Inc. v. Mayo, 91 S.W.3d 41, 51 (Tex.App.-Amarillo 2002, pet. filed); Guadian, 868 S.W.2d at 897. It entails the consideration of what the plaintiffs capacity to earn a livelihood actually was and assesses the extent to which it was impaired. Koko Motel, Inc., 91 S.W.3d at 51. Factors such as stamina, efficiency, ability to work with pain, and the weakness and degenerative changes which naturally result from an injury and from long-suffered pain are legitimate considerations in determining whether or not a person has experienced an impairment in future earning capacity. Rendon v. Avance, 67 S.W.3d 303, 312 (Tex.App.-Fort Worth 2001, pet. granted, cause remanded to trial court w.r.m.) (quoting Springer v. Baggs, 500 S.W.2d 541, 544-45 (Tex.Civ.App.-Texarkana 1973, writ ref d n.r.e.)), In order to support a claim for lost earning capacity, the plaintiff must introduce evidence from which the fact-finder may reasonably measure in monetary terms his earning capacity prior to injury unless some reason appears for his failure to do so. Strauss, 67 S.W.3d at 435. Calculating the extent of impairment of earning capacity, however, constitutes an exercise in uncertainty. McIver v. Gloria, 140 Tex. 566, 568, 169 S.W.2d 710, 712 (1943).

Briggs testified that, for the balance of her life, she would be limited in the type of work she would be able to perform because of the injuries she sustained in the car accident. . The reasonable inferences from Briggs’s testimony and the context in which it was given are that she will continue to be unable to bend down, to look up to pull charts, or to be on the phone for extended periods. She will be unable to resume her job at her husband’s office or to perform any similar type of work. This evidence is legally sufficient to support some measure of lost future earning capacity damages. See, e.g., Brazoria County v. Davenport, 780 S.W.2d 827, 832 (Tex.App.Houston [1st Dist.] 1989, no writ).

In the year between the accident and the default judgment prove-up hearing, Briggs lost $25,128 in wages due to her injuries. The trial court apparently awarded her approximately twice that amount as future lost earnings. No evidence to the contrary exists, and Briggs’s testimony on this issue is not so weak that we can say the evidence is factually insufficient to support an award of $50,000 for her future lost earning capacity. See, e.g., McIver, 140 Tex. at 570, 169 S.W.2d at 713; Brazoria County, 780 S.W.2d at 832.

C. Pain, Suffering, and Mental Anguish in the Past

The process of awarding damages for amorphous, discretionary injuries such as mental anguish or pain and suffering is inherently difficult because the alleged injury is a subjective, unliquidated, nonpecu-niary loss. Dollison v. Hayes, 79 S.W.3d 246, 253 (Tex.App.-Texarkana 2002, no pet.). The process is not readily susceptible to objective analysis. Id. The presence or absence of pain, either physical or mental, is an inherently subjective question. Id.

Briggs testified that as a result of the accident she went to see Dr. Jeffrey Heit-kamp, M.D., Dr. Joseph Stephens, M.D., her dentist, Dr. Curtis Gleaton, and an oral surgeon named Dr. Carroll Carver. Dr. Heitkamp took x-rays of her spine, chest, and shoulders. He took an MRI of Briggs’s head. He determined that Briggs had suffered significant physical injuries as a result of the wreck, diagnosed her with a cervical strain, and prescribed three months of physical therapy. Briggs attended physical therapy for three months and the therapy helped, but at the time of the prove-up hearing, Briggs was still required by her physical therapist to do some home exercises. Briggs testified that she still experiences pain in her back and neck as a result of the wreck and said she presently takes over-the-counter pain relievers to help her deal with the pain.

Briggs went to Dr. Stephens because when Dawson hit her from behind during the wreck, her chest hit the steering wheel of her car. She experienced swelling and pain in her chest and became concerned that the force of the wreck caused her breast implants to rupture. Although the tests performed by Dr. Stephens did not indicate that Briggs’s implants had ruptured, he performed surgery to remove them. Dr. Stephens’s operative report states:

INDICATIONS: The patient is a 48-year-old white female who has had breast implants for a number of years, placed by another surgeon. She had done well until an automobile accident in May 1999 at which time she suffered trauma to both breasts resulting in pain and marked bruising. Subsequently, she developed a progressive capsular contracture on both sides, but especially on the right side, which caused her constant discomfort. X-rays did not demonstrate any clear cut rupture of either implant but the discomfort was such that removal of the implants was requested, without replacement.

Briggs saw her dentist following the accident because she had pain, swelling, and popping in her left jaw as a result of the accident. Although Briggs underwent temporomandibular joint syndrome (TMJ) surgery thirteen years before the accident, the wreck exacerbated her TMJ problems so that she must now wear a bite splint at night. If she goes on a trip and forgets her splint, “I will have — popping will start again in my jaw, and then this side of the ear, my ear will hurt and my jaw will hurt. So my jaw doesn’t get aligned.”

Once the existence of some pain and suffering has been established, there is no objective way to measure the adequacy of the amount awarded as compensation, which is generally left to the discretion of the fact-finder. Pentes Design, Inc., 840 S.W.2d at 80. The amounts of damages awarded for pain and suffering are necessarily speculative, and each case must be judged on its own facts. Id.; see Sharm, Inc. v. Martinez, 900 S.W.2d 777, 784 (Tex.App.-Corpus Christi 1995, no writ) (op. on reh’g). The evidence concerning Briggs’s past neck and back pain, her three months of physical therapy, the pain in her ear and jaw, and the pain in her chest, constitutes legally and factually sufficient evidence to support an award of $50,000 for past pain and suffering, without regard to any mental anguish suffered by Briggs. See, e.g., Pentes Design, Inc., 840 S.W.2d at 80 (upholding default judgment’s award of $500,000 for pain and permanent disfigurement for loss of two front teeth); Sharm, Inc., 900 S.W.2d at 784 (upholding default judgment’s award of $200,000 for physical pain and suffering resulting from fractured arm in slip and fall case); Popkowsi, 671 S.W.2d at 919 (upholding default judgment’s award of $50,000 based on evidence that the plaintiff suffered muscle damage, dizzy spells, headaches, and permanent scarring as passenger in one vehicle accident).

D. Pain, Suffering, and Mental Anguish in the Future

Briggs explained that she still suffers pain in her neck and back from her injuries and mental anguish from the accident. She still suffers from pain in her ear and jaw if she fails to wear the bite splint. This evidence is legally and factually sufficient to support an award of $25,000 in future pain and suffering. See, e.g., Weidner v. Sanchez, 14 S.W.3d 353, 372 (Tex.App.-Houston [14th Dist.] 2000, no pet.).

E. Physical Impairment in the Past & Future

Physical impairment, sometimes called loss of enjoyment of life, encompasses the loss of the injured party’s former lifestyle. Schindler Elevator Corp. v. Anderson, 78 S.W.3d 392, 412 (Tex.App.-Houston [14th Dist.] 2001, pet. abated). Physical impairment is an element of damages that extends beyond loss of earning capacity and beyond any pain and suffering, to the extent that it produces a separate loss that is substantial or extremely disabling. Id; Dollison, 79 S.W.3d at 253; Blankenship v. Mirick, 984 S.W.2d 771, 777 (Tex.App.-Waco 1999, pet. denied). To receive damages for physical impairment, the injured party must prove that the effect of his physical impairment extends beyond any impediment to his earning capacity and beyond any pain and suffering, to the extent that it produces a separate and distinct loss that is substantial and for which he should be compensated. Schindler Elevato r Corp., 78 S.W.3d at 412. •Therefore, even proof that one is entitled to compensatory damages for pain and suffering, or for lost wages, does not automatically entitle one to compensation for physical impairment. Dollison, 79 S.W.3d at 253. The party claiming such damages bears the burden of proving a compensable injury. Id.

Here, the record before us contains only the following testimony concerning Briggs’s physical impairment:

Q. And on your — your daily activities — let’s look at them. Was there a disruption' — a substantial disruption of your daily activities?

A. Yes.

[[Image here]]

Q.... And you’ve told us you — you weren’t able to carry on with your normal day-to-day activities, right?

A. Yes.

Q. Now, after today — are your limitations still going to impair you in the future?

A. Yes.

Q. Is $50,000 a reasonable amount to award you for physical impairment in the past?

A. Yes.

Q. And is $25,000 a reasonable amount to award you for the physical impairment that you’re going to continue to suffer into the future?

A. Yes.

Briggs did not testify concerning what daily activities she was unable to perform. Nor did she explain what activities she believed she would be incapable of performing in the future. Although no mathematical standard exists for the determination of the money damages for physical impairment, the plaintiff must establish that physical impairment exists. Here, there is simply no evidence of Briggs’s past or future physical impairment as opposed to past and future pain and suffering or future lost earning capacity.

F. Medical Expenses

Briggs offered her medical records and billing records into evidence at the default judgment prove-up hearing via self-authenticating affidavits from the record custodians. These records establish that Briggs incurred $8,237.62 in medical expenses. Briggs’s medical expenses are broken down via the self-proving affidavits she utilized to prove them up as follows: $693.92 for x-rays and MRIs, $910 for dental exams and general treatment, $3,295 for a mammogram, CT scans, and physical therapy, $2,200 for breast implant removal, $150 for a neurological exam, $150 for examination by an oral surgeon, and $333.07 for prescriptions. 6

Dawson claims that many of Dr. Gleaton’s charges appear to be for routine dental exams and prophylactic treatment. Dawson is correct. However, as discussed below, Dr. Gleaton executed an affidavit swearing that the treatments he provided to Briggs were necessary for her proper treatment as a result of the accident. See New, 3 S.W.3d at 517 (recognizing trial court may rely upon unobjected — to hearsay evidence presented via affidavits at a default judgment prove-up hearing). Dr. Gleaton’s affidavit is contradicted though, by the billing entries attached to it, some of which are clearly for routine dental exams and cleanings. Consequently, we agree with Dawson that the evidence is factually insufficient to show that the entirety of Dr. Gleaton’s $910 fee was for services necessitated by the accident. See Jackson, 77 S.W.3d at 902 (plaintiff must prove medical expenses were reasonably necessary for plaintiff to incur as result of her injuries).

G. Causation

Dawson claims that Briggs “failed to bring forth any medical expert’s testimony causally linking her TMJ to the auto accident” and faded to prove that her breast implants ruptured as a result of the accident. The entry of a default judgment operates as an admission of all allegations of fact set out in plaintiffs petition, except as to unliquidated damages. Transp. Concepts, Inc., 748 S.W.2d at 304. From this rule, it follows that a default judgment admits that the defendant’s conduct caused the event upon which the plaintiffs suit is based. Morgan v. Compugraphic Corp., 675 S.W.2d 729, 732 (Tex.1984). At a default judgment prove-up hearing, the plaintiff is still required, however, to prove the causal nexus between the event sued upon and her injuries. Id.

Expert testimony is only one of several ways to prove proximate cause. A fact finder may find the required causal nexus between the event sued upon and the plaintiffs injuries when: (1) general experience and common sense will enable a layperson fairly to determine the causal nexus; (2) expert testimony establishes a traceable chain of causation from the injuries back to the event; or (3) a probable causal nexus is shown by the expert testimony. Blankenship, 984 S.W.2d at 775. Generally, lay testimony establishing a sequence of events that provides a strong, logically traceable connection between the event and the condition is sufficient proof of causation. Morgan, 675 S.W.2d at 733. Lay testimony is adequate to prove causa tion in cases in which general experience and common sense will enable a layman to determine, with reasonable probability, the causal relationship between the event and the condition. Id. Moreover, in rendering a default judgment, a trial court may consider affidavits as evidence of unliquidated damages. New, 3 S.W.3d at 517.

Here, Briggs testified that she had pain, swelling, and popping in her jaw as a result of the accident. She sought medical treatment from her dentist because of the pain, swelling, and popping in her jaw. Dr. Gleaton, Briggs’s dentist, treated her for this problem and she was still receiving treatment at the time of the prove-up hearing. She is required to wear a bite splint, or her jaw hurts and pops. She testified that prior to the accident, she did not wear a bite splint. Additionally, Dr. Gleaton’s dental records relating to Briggs indicate that Briggs specifically sought Dr. Gleaton’s treatment as a result of the accident. A notation in Briggs’s chart reads: “Pt presented w/ recent history of auto accident and popping in left tempro mandibular joint.” ' A chart notation from a subsequent visit provides,' “TMJ problems from wreck.” Finally, the medical records affidavit regarding Briggs’s medical treatment was executed by Dr. Gleaton and swore that the services he rendered were necessary for the proper treatment of injuries suffered by Briggs on May 13, 1999, the date of the accident.

Briggs’s lay testimony establishes a sequence of events that provides a strong, logically traceable connection between the accident and her jaw swelling, pain, and popping, which her dentist diagnosed as “TMJ problems.” This lay testimony is sufficient proof of causation. Morgan, 675 S.W.2d at 733. Moreover, Dr. Gleaton swore that the treatment he provided was necessary to treat Briggs’s injuries, “which precipitated the services which are made subject herein.” Accordingly, to the extent Dawson contends expert testimony on causation was required, the record reflects Briggs provided such expert testimony via Dr. Gleaton’s affidavit. 7 See New, 3 S.W.3d at 517. We hold that the evidence is legally and factually sufficient to establish a causal nexus between the event sued upon, i.e., the car accident, and Briggs’s current TMJ problems.

We next address Dawson’s contention that Briggs failed to prove her breast implants ruptured. We agree that the record before us does not establish that Briggs’s implants ruptured. The record before us does, however, establish that: Briggs’s chest hit the steering wheel of her car when Dawson’s vehicle hit her from behind as she yielded to service road traffic while exiting Highway 360; Briggs suffered bruising, swelling, and pain in her chest area as a result of the impact of the steering wheel; although Briggs had the implants for a number of years, after the accident she continued to experience pain in her chest and developed a progressive capsular contracture on both sides; Briggs was in constant pain and desired to have the implants removed without replacement. We hold that this evidence is legally and factually sufficient to establish a sequence of events providing a strong, logically traceable connection between the accident and Briggs’s chest pain. See Morgan, 675 S.W.2d at 733. It was not necessary for Briggs to establish that her implants ruptured in the accident. Legally and factually sufficient evidence exists showing that the chest injury Briggs suffered in the accident ultimately required, for pain management purposes, that her breast implants be removed.

We sustain Dawson’s legal sufficiency challenges to Briggs’s past and future physical impairment damages. We sustain Dawson’s complaint that the evidence is factually insufficient to establish that all of the $910 services provided by Dr. Gleaton were necessitated by the injuries Briggs suffered in the accident. We overrule the balance of Dawson’s second issue.

V. Conclusion

We affirm the trial court’s default judgment holding Dawson liable for causing the accident and for causing Briggs’s injuries. We affirm the trial court’s judgment awarding: $25,128 for past lost earnings; $50,000 for lost future earning capacity; $50,000 for pain, suffering and mental anguish in the past; $25,000 for pain, suffering and mental anguish in the future; and $7,327.62 in medical expenses ($8,287.62 minus Dr. Gleaton’s $910 bill). See Jackson, 77 S.W.3d at 904 (affirming liability portion of default judgment, affirming award of $1,480 for lost wages, but reversing and remanding remaining damage claims); Sharm, Inc., 900 S.W.2d at 786 (affirming default judgment as to liability, affirming award of $400,000 for pain and suffering and physical impairment, but reversing and remanding remaining damage claims). We reverse that portion of the trial court’s judgment awarding $50,000 for physical impairment in the past, $25,000 for physical impairment in the future, and $910 for medical services provided by Dr. Gleaton. We remand the past and future physical impairment claims and the medical expenses Briggs claims she was required to incur from Dr. Gleaton as a result of the accident to the trial court for a new trial on these damage claims. See Holt Atherton Indus., Inc., 835 S.W.2d at 86 (holding that when damages awarded in a default judgment are supported by either legally or factually insufficient evidence, and those damages were proved up at an uncontested hearing, we must remand the case for a new trial on those damage issues).

Notes

1

. Specifically, we held:

[T]he trial court erred in awarding a default judgment against the appellants for the reason that the record does not affirmatively reflect that the defendants were properly served with citation in accordance with former article 3.64 of the Insurance Code, since the record does not affirmatively reflect that service of citation was left at the home office of either company during business hours. Higginbotham, 750 S.W.2d at 20.

2

. In light of our holding that the trial court possessed jurisdiction to amend the return of citation, we need not address Briggs’s contention in her appellee’s brief that the amendment of the return of citation relates back to the initial filing of the return.

3

. Briggs’s medical records and bills were proved up via self-authenticating affidavits and were admitted into evidence at the hearing.

4

. These figures actually total $233,365.62, but Dawson does not challenge this mathematical error, so we do not address it.

5

. We do not review the legal sufficiency of the evidence to support this element of damages because Dawson concedes some evidence of lost wages exists.

6

. These amounts total $7,731.99, not $8,237.62, but Dawson does not challenge this discrepancy.

7

. In her reply brief, Dawson claims that Gleaton's affidavit is not competent evidence because, although it states that Gleaton is personally acquainted with the facts stated therein, it does not explain how Gleaton became familiar with the facts. Because the affidavit's attachments reflect that Gleaton himself provided dental services to Briggs as a result of the accident, we reject Dawson’s contention.

Case Details

Case Name: Dawson v. Briggs

Court Name: Court of Appeals of Texas

Date Published: May 1, 2003

Citation: 107 S.W.3d 739

Docket Number: 2-02-200-CV

Court Abbreviation: Tex. App.