*1 suit or of institution of the the claim ” fees; (em- attorneys’ reasonable plus HERNANDEZ, et al. and Kevin F. Juan added) phasis Smith, al., Appellants, et Robert stipulation the second operat- hold that We any liability Hollis from ed release BRADDOCK, al., Appellees. et to Durham stipulation fees as the attorney’s 2375cv. No. stated. Texas, out, however, point must that a Corpus Christi. joint and obligor of one several does release joint another and sever to release not serve 26, 1982. Aug. obligor. Upon recovery (ab on his claim al Opinion Filing Supplemental Durham stipulation), was entitled sent Sept. of Remittitur attorney’s fees from Hollis reasonable under arti Trinity jointly severally, release of Hollis on the Durham’s cle 5160. fees does not benefit attorney’s
claim for
Trinity. maintain Durham has
Appellants right appeal the attorney’s
waived its failing move for a
fees issue new trial. reason that the trial
Appellants court would receive evidence on the issue. Rule
have to appellants overlooked, T.R.C.P.
however, that the above the fact mentioned already the record.
stipulations indicating compliance Durham’s with
Facts also stipulated 5160 were on the rec-
article its right
ord. Durham established stipulated fees as
attorney’s reasonable on its claim
prevailing by complying We, therefore,
with the statute. sustain and hold cross-point that Durham was the statute to recover the
entitled under attorney’s Trinity. fees from
stipulated points carefully
All of error been are overruled. The cross-
considered The judgment sustained. accordingly modified to in- against Durham recovery by Trinity
clude stipulated fees in the attorney’s $5,000.00. of the trial court modi- is AFFIRMED.
fied *2 Harrell, Jaworski, Fulbright &
Robert S. Zeidman, Floyd, Butler, Mark R. C. Robert Rice, Binion, Knapp, Cook & Robert Bate- Hicks, Hirsch, Robinson, man, Glover & W. Hudgins, Hudgins, Muessig, Sturm & Craig Houston, Warrick, for appellants. Brannon, P.C., Houston, for H. James appellees. BISSETT, UTTER and KENNE-
Before DY, JJ.
OPINION BISSETT, Justice. collision case. is an automobile
This Braddoek, Castleman, and Castleman, sued Juan Hernandez Lester Smith, their employers, Gen- and Kevin Co., MR. HARRELL Co. Reliable Batteries Electric eral [defense counsel]: head) injuries received when the (Shakes respectively, by was struck automobile plaintiffs’ Mr. Scheiness? COURT: THE trucks, driven Hernandez and the one MR. SCHEINESS [defense counsel]: The accident occurred on other Smith. head) (Shakes 7, 1977. The trial February commenced will read affidavits *3 THE COURT: The case 1981. was tried to a February you.” Thank my decision. I make before special issues favor- answered jury which the filed a defendants March On The trial court ren- ably plaintiffs. to the hearing “full” on their requesting motion awarding Phyllis Braddock judgment dered A hearing on this for new trial. motion $103,510.25, $25,282.00, Odester Castleman March 1981. was set request (the husband of Lester Castleman and 16, 1981, hearing the the on March On $37,378.40. Castleman) commenced with the request defendants’ first contend that The defendants following statement: denying them erred an eviden- “Your HARRELL MR. [defense counsel]: trial, hearing on their motion for new tiary Honor, today request on our are here we evidence is insufficient to sup- that the and hearing we evidentiary whereby for full of damages awarded the port the amount case, put in this jurors bring in can The issue of not liability is chal- plaintiffs. present testimony stand on the them lenged. not material misconduct or as to whether case.” in this occurred signed was on March judgment thereto, 27, 1981, on February Prior presented plaintiffs’ attorney After the filed a motion for new trial the defendants the defense counsel stated: argument, allegations jury upon based misconduct. way “The we read the HARRELL] [MR. to the motion was the affidavit Attached law, bring not entitled to all we were juror the sworn statement of an- one on the first jurors hearing down those way other. we read the we had. date that After all positions, ment: ing, Thereafter, Mr. Harrell argued his motion hearing on the defendants’ motion for new trial. At ment: jury granted, we those record position make counsel] fully pray On March “THE COURT: [Mr. the court concluded with argument misconduct. excessive my decision.” whatever Harrell] the commencement of the hear- would I would parties 2, 1981, the trial court held a following transpired: I have. be, and after which damages be reduced.” granted a remittitur new trial be granted like “Your argued their it If a new trial Mr. the following you Honor, Harrell, you following would feel like put respective that’s all [defense respect- on the is not state- state- I will your on sides sides sense would Trial to at and not any further “We didn’t you down.” THE COURT: law we have we set down on find out Motion down. then approval before that time we have an wasn’t bolster another for New That’s present put them present opportunity the first fairness, what # going to want to affidavits to make going their to why your hearing, any As Trial and whether n anything get your okay present on that first hearing and we bring case. I to let us we I subpoena further gave was on our feeling on Motion for New let us recall, my ruling. [*] didn’t so we could affidavits time for both was testimony, they put I bring [*] them down bring that’s day, gave they prepared them on. wished. In the or jurors if the them them [*] first, both your why just felt not or Anything else? “THE COURT: ruling at that time and I my That was the we thought way Harrell? left it. Mr. that, if you true, have stated anything which, Now facts constituted ma- Harrell, further, Mr. Mr. misconduct, Scheiness terial Bateman, Mr. Muessig, you Mr. and/or evidentiary an have conducted hear- should so. may do for new on motion trial. We ing their anything you have further wish you Do for two reasons. overrule purpose, but ducted the you So THE COURT: come down the record testimony MR. SCHEINESS: you MR. and we have time, Mr. Scheiness? that Mr. have the ther hearing THE COURT: hearing, whether in the Scheiness. MR. SCHEINESS: my assume anything today. purpose may wish Brannon, ruling on Motion hearing that HARRELL: you wish law, or whether do so jurors— you to [*] of at this we wish This hearing on it the last time. Judge, present today further Ias of our don’t Mr. Turco do It at this time.” not to I had the hearing, [*] is may you pointed out, we had Your because time? present *4 just have anything this is subpoenaed No. for the It’s you setting or not have not [*] a you present out wish Honor, and Mr. Anson continuation of have been before. Before I make anything fur- that was not at this time? record at this considered a you must have a (sic) opinion New Trial? [*] I had con- them to just present, the live hearing have to further [*] your Mr. for presenting date, defendants, that motion their claim for contrary an fendants’ The jury misconduct. the date the deemed in to —Eastland date In such Huebner, trial court. Where is deemed to trial The second reason this case failed do so constitutes intention hearings date their defendants above before the it was their The first at to to the defendants’ first defendants 610 S.W.2d hearing case, however, either testimony at the 1980, quoted to offer on their signed. Rule point jury misconduct. filed their motion motion for new reason is based writ ref’d to been Id. Since second been filed on hearing. Although on his motion burden a waiver of the excerpts clearly request is that the trial for 561, evidence had no motion for new in filed, they overruling hearing, 562 (Tex.Civ.App. the movant support signed. done, signed, allegation, n.r.e.). a 306c, hearing signed intention of present at a defendants indicated after the which claim of date the for new Pace v. trial the de- Failure waiver. waived motion court, show their trial. after must held evi- is is Thank you. time, COURT: and their failure “THE at to do dence to the trial court. so cannot be attributed Request Motion for an Eviden- Your Hearing is denied. tiary T.R.C.P., in provides, perti 327 New Trial and Remittitur is Motion following: part, the nent you.” Thank denied. For Misconduct Rule 327. above, the judgment was As stated of the motion is ground Where the 16, 1981. March signed on defendants jury ... of the court shall misconduct for a hearing on their request no thereof from the jury hear evidence trial after new for a date. On motion court, may grant open others in 1981, 28, signed the court an order March proved misconduct ... new trial if such the defendants’ for an evi- denying material, reasonably if it appears an hearing and order denying the dentiary both on the hearing the evidence for new motion trial. defendants’ trial of the case and the motion and error, the defend- their first as a whole that injury In from the record since the affidavit and ants contend to the complaining par- resulted probably attached to their motion sworn statement ty.”
363 An imposes mandatory duty upon appellate (as court rule well as a trial evidence jury deciding to hear whether an award court), in properly presented. Roy it is require excessive as to misconduct is so damages 478, v. 139 Tex. Murphy, remittitur, Co. the standard set governed Lumber Jones 644, Freeman, 646 (1942). 108 Tex. 163 S.W.2d in Wilson forth in (1916), restated Flani 993 185 S.W. to a new trial because be entitled To Carswell, 159 Tex. 324 S.W.2d gan v. misconduct, the movant has the (1959), as follows: 835 at the proving, hearing on his burden do, of Civil can occurred, “All the Court motion, jury misconduct required of it to do ... misconduct, that, and all that based it was material judicial judgment its sound whole, to exercise as a the misconduct record on the in the ascertainment of and discretion harm to the movant. resulted probably be reasonable com- would Dosher, (Tex. 622 S.W.2d 574 what Flores v. sustained, injury for the Strange pensation v. Treasure 1981); City, 608 S.W.2d [Having] excess .. . the balance treat (Tex.1980). burden is on the an amount upon that would be decided timely present evidence. Al movant it compensation ... should Liquid Co., Fertilizer reasonable lison v. Gulf a remittitur excess ... 684, 686 authorize (Tex.Civ.App. Worth S.W.2d — Fort judgment.” with its sound writ). in accordance no at 840. 324 S.W.2d Id. case, the trial court never In $25,- Braddock was awarded permit defendants to refused *5 for compensation past her and evidence in as support of 000.00 their motion. Prior to pain and physical anguish. mental concluding both future hearings the court offered revealed that she suffered evidence the defendants an opportunity evi head, back, foot, left and to her injuries both occasions and on the offer was dence that at testified the time of hold that She the trial court hands. by refused. after trial, the accident hearings years giving on four the defendants’ holding suit, she was still suffering motion, than was rise to required by did more Rule backaches and headaches 327, and Roy regularly T.R.C.P. Jones Lumber Co. v. to the accident. Her supra. The she attributed Murphy, defendants’ first which become frequently so severe that is overruled. headaches error medication, bed, go to take and she had defendants, in their remaining points order to sleep pain. in alleviate the try to error, that the damages contend awarded the evidence is factually that suffi We hold are excessive. plaintiffs the The defend- the support damages Phyl awarded cient we order a remittitur of ants and that the amount awarded lis Braddock damages. the not excessive. findings the appeal, by the On ground disturbed on the $35,- not be of “ex- was will awarded Lester Castleman there any probative compensation evi for past cessiveness” as 000.00 award, the dence to sustain unless the rec pain anguish, mental physical future the minds of the jurors loss of earning ord shows earnings, capacity. lost passion, prejudice by collision, or bias as so controlled the he suffered As a result unwilling to lacerations, them consider the case frac multiple contusions merits, to the end result clavicle, (collarbone) the on its and fractures of tured is so excessive it shocks the hospitalized award for twelve pelvis. He Appellate Court. Dallas injuries painful conscience make it for him His days. Farnsworth, Co. v. 148 Tex. Ry. & Terminal work. In view in strenuous engage (1950); Cat, 1017 Wharf injuries, 227 S.W.2d we hold that the severity of his Cole, (Tex.Civ. 567 S.W.2d Lester Inc. v. awarded Castleman are not damages n.r.e.). Christi writ ref’d App. Corpus excessive. — Castleman was as to awarded Braddock and Lester Castle-
$100,000.00 compensation past for her is AFFIRMED. man pain physical and mental an and future multiple suffered guish. skin abra She OPINION ON THE SUPPLEMENTAL sions, clavicle, a pel fractured fractured FILING OF REMITTITUR vis, of the joints in and a dislocation her suggested that appellee has This Court hospitalized approxi pelvis. She $50,- remit the sum of Odester Castleman and wore days body cast mately twelve awarded out of the amount to her as 000.00 four weeks. Her frac approximately original opinion. forth in the The appel- set without complications. healed tures have remittitur in the lee has filed a a doctor respect she saw with The last time Court. by this suggested August, inwas 1977. At the injuries to her Therefore, in with opinion accordance trial, suffering she was from an time of announced, heretofore pain “needle-like” back, in her occasional of the trial court is reformed to arm, and had difficulty in her lift “knots” hereby of the amount extent remitted and her ing objects gave children. She so that the appellee judg- amount of July a child 1978. No diffi birth to in of Odester Castleman against favor ment injuries to the attributable were ex culties $53,- is reduced to the appellant sum of Mrs. Castleman perienced in connection Costs are taxed 510.25. pelvic Her eliminat injury with childbirth. appellant appel- to the and 25%to the 75% activity, riding, only one horseback ed lee Odester Castleman. frequently engaged had which she prior injuries. to her as herein hereby AFFIRMED. reformed reviewing entirety the record in its After Castleman, we are of favorably to Mrs. $100,- to her
opinion the award damages past
000.00, as anguish, and mental pain is so ex-
physical warrant as to conclusion that
cessive *6 result passion was the of
such award other improper or some motive.
prejudice no found reversible error in Since we RUIZ, Appellant, Nieto Jesus record, duty to suggest it is our a remit- may time within which it titur and the 440, T.R.C.P. filed. Rule Texas, Appellee. STATE opinion the award We are of No. 13-81-355-CR. $100,000.00as compensation past for her physical pain Texas, and mental an- Castleman excessive in guish to Mrs. Corpus Christi. $50,000.00. The defendants’ Aug. of error is sustained. third ordered accordingly that a remittitur It is be filed in this Court Odes- $50,000.00 fifteen within days
ter Castleman decision, whereupon
announcement will reform the
this Court remittitur; the amount of judgment of the trial court
otherwise reversed, will be Odester Castleman action will be severed cause of
her a new trial.
remanded