Judith Howell Ponce v. Maria Sandoval ( 2001 )

NO. 07-99-0488-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
NOVEMBER 2, 2001
______________________________
JUDITH HOWELL PONCE, APPELLANT
V.
MARIA SANDOVAL, APPELLEE
_________________________________
FROM THE 223RD DISTRICT COURT OF GRAY COUNTY;
NO. 30,361; HONORABLE LEE WATERS, JUDGE
_______________________________
Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
Appellant Judith Howell Ponce, defendant in the trial court, appeals from a judgment
by which the trial court disregarded jury findings as to past and future medical expenses
of appellee Maria Sandoval, plaintiff in the trial court. The trial court entered judgment
against Ponce, notwithstanding the verdict, for amounts greater than the jury found. We
reverse and render judgment in accordance with the jury findings.
I. BACKGROUND
On June 20, 1995, an automobile being driven by appellant Judith Howell Ponce ran
over Maria Sandoval’s left foot and brushed Sandoval’s lower leg (“the occurrence”).
Sandoval sought medical treatment for her injuries at a local hospital emergency room.
X-rays taken at the emergency room and records of examinations by emergency room
medical personnel showed preexisting changes in her left foot and in both of her knees.
Medical personnel noted that the injury from the accident appeared “minimal.” The
emergency room records noted that Sandoval’s blood pressure was elevated and a
diagnosis of hypertension (high blood pressure) was made. Sandoval returned to the
emergency room several times following June 20, 1995, with symptoms consistent with
hypertension and physical findings of high blood pressure. On one occasion she was
admitted to the intensive care unit for observation due to elevated blood pressure.
Sandoval sued Ponce. The case was tried to a jury.
Evidence at trial included testimony as to Sandoval’s physical condition before and
after the occurrence and records of the hospital and the emergency room. A medical
expert, Dr. Robert Philips, testified on behalf of Sandoval. He explained that numerous
causes exist for hypertension, with the major cause being idiopathic or essential
hypertension. Idiopathic or essential hypertension is hypertension from unknown causes.
Dr. Philips had never examined or seen Sandoval in a clinical setting, but examined her
medical records the day before he testified. The records did not include records of any
medical treatments from before the occurrence.
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Philips testified that in his opinion, to a reasonable medical probability, Sandoval’s
hypertension was caused by the occurrence. Dr. Philips further opined that the medical
expenses incurred by Sandoval in her multiple visits to the emergency room, her
confinement in the intensive care unit for observation, and in obtaining her prescriptions
for blood pressure medicine were related to the occurrence. Those expenses totaled
$8,167.15. Dr. Philips testified that Sandoval would probably incur regular expenses for
blood pressure checkups, laboratory work and blood pressure medication for the rest of
her life, that those expenses would be necessary because of the occurrence, and that the
expenses would probably be $600 per year. On cross-examination, the doctor agreed that
(1) the medical records reflected a bone spur in Sandoval’s left foot and arthritis in both of
her knees which pre-existed the occurrence; (2) the only medical record reflecting
complaints by Sandoval about her foot or leg as a result of the occurrence was the
emergency room record of June 20th; (3) an occurrence like the one of June 20th typically
would not cause hypertension, but could cause an episode of elevated blood pressure;
(4) the medical records reflected an episode of elevated blood pressure following a
subsequent fall at home; and (5) the medical records reflected that Sandoval did not
comply with instructions about how to care for her high blood pressure condition, although
he opined that the record was in error as to Sandoval’s noncompliance. The record
contains no proof that Sandoval would incur future medical expenses resulting from the
occurrence except for expenses claimed as a result of her hypertension.
The jury found negligence of Ponce was 51% of the cause of the occurrence and
negligence of Sandoval was 49% of the cause of the occurrence. The jury was instructed,
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in substance, that in answering the damages question, no amount should be awarded for
conditions which (1) did not result from the occurrence, (2) pre-existed the occurrence,
except to the extent any preexisting conditions were aggravated by injuries resulting from
the occurrence, or (3) resulted from Sandoval’s failure to properly care for her injuries from
the occurrence. The jury found that the following sums would fairly and reasonably
compensate Sandoval for her injuries resulting from the occurrence:
3(a) Physical pain and mental anguish in the past $500
3(b) Physical pain and mental anguish that, in reasonable probability,
Maria Sandoval will sustain in the future $0
3(c) Loss of earning capacity sustained in the past $400
3(d) Loss of earning capacity that, in reasonable probability,
Maria Sandoval will sustain in the future $0
3(e) Medical care in the past $1600
3(f) Medical care that, in reasonable probability, Maria Sandoval
will incur in the future $0
Judgment was entered in favor of Sandoval on the jury’s verdict for $275, after
allowing for appropriate credits and reductions for the negligence findings.
By her First Amended Motion for Judgment Non Obstante Veredicto, for Additur
and/or for New Trial, Sandoval requested the trial court to enter judgment notwithstanding
the jury’s verdict in regard to past medical expenses and future medical expenses, or to
make an additur to the verdict. She also urged that the jury findings of zero damages for
future physical pain, mental anguish and loss of earning capacity was so against the weight
of the evidence as to be manifestly unjust. Sandoval prayed for judgment nov or additur
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as to the past and future medical expenses; or, in the alternative, that if judgment nov was
not entered as she requested, that she be granted a new trial.
The trial court chose the first of the courses of action which it was invited to take by
Sandoval. In a letter to the parties, the trial court stated that an additur would be ordered
to the amounts found by the jury. The judgment entered, however, recited that the court
found that (1) the jury answers as to past and future medical expenses were supported by
no evidence, (2) the jury answers as to past and future medical expenses were so against
the weight and preponderance of the evidence as to be manifestly wrong and unjust, (3)
the undisputed medical testimony was that Sandoval’s reasonable and necessary medical
expenses in the past were in the aggregate amount of $8,167.15 and that no bill or
combination of bills added up to $1,600, and (4) the undisputed medical testimony was that
Sandoval’s reasonable and necessary expenses for medical care in the future are $15,300.
The judgment then, as to medical expenses, (1) ordered that the jury’s answers as to
reasonable and necessary expenses for medical care in the past and future “are
overturned and held for naught,” (2) stated that the court found the proper judgment
notwithstanding the jury’s verdict should be the sum of $8,167.15 for medical expenses in
the past and $15,300.00 for medical expenses in the future, and (3) granted judgment in
favor of Sandoval based on the amounts of past and future medical expenses found by the
court, in conjunction with the findings made by the jury as to Sandoval’s other damages
and the apportioned negligence of the parties.
Ponce moved the trial judge to reconsider his ruling on the basis that the jury’s
finding as to past medical was supported by evidence, and that the zero finding for future
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medical was apparently based on the jury’s failure to find Sandoval’s hypertension causally
related to the auto accident. Ponce also moved the court to enter judgment in accordance
with the original judgment which was based on the jury’s findings. The motions filed by
Ponce were denied.
By three issues Ponce asserts that the trial court erred in disregarding the jury
findings and entering judgment for amounts of medical expenses in excess of the amounts
found by the jury. Issue one urges that the trial court erred in granting Sandoval’s First
Amended Motion for Judgment Non Obstante Veredicto, for Additur and/or for New Trial.
Issue two asserts that the trial court’s action infringed upon her right to have factual
controversies resolved by jury trial as guaranteed by Article 1 § 15 of the Texas
Constitution. Issue three claims error by the trial court in disregarding the jury’s damage
findings of past and future medical expenses. Ponce prays that we reverse and render
judgment reflecting the findings of the jury, including the amount of medical expenses
found by the jury, with appropriate credits and offsets.
Sandoval responds by urging that Ponce did not properly preserve error for review
as to any of her three issues, and that the trial court did not abuse its discretion in granting
her motion for judgment nov. She also asserts, by six cross-points that: (1) the jury’s
finding of $1600 for past medical expenses was not supported by any evidence, (2) the
finding for past medical expenses was against the overwhelming weight of evidence so as
to be manifestly wrong and unjust, (3) the jury’s finding of zero for future medical expenses
was not supported by any evidence, (4) the jury’s finding of zero for future medical
expenses was against the overwhelming weight of evidence so as to be manifestly wrong
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and unjust, (5) the jury’s finding of zero for loss of wage earning capacity in the future was
not supported by any evidence and (6) the jury’s finding of zero for loss of wage earning
capacity in the future was so against the overwhelming weight of evidence as to be
manifestly wrong and unjust. Sandoval prays that we affirm the trial court judgment, or that
if we sustain any of Ponce’s issues, we remand for a new trial.
II. DID THE TRIAL COURT ERR IN GRANTING ADDITUR
OR IN DISREGARDING JURY FINDINGS
A. Law
When a jury renders a verdict, the trial judge is mandated to enter judgment thereon
unless the verdict is set aside, a new trial is granted, or judgment is rendered
notwithstanding the verdict or jury finding according to the Texas Rules of Civil Procedure.
TEX . R. CIV. P. 300.1 The judgment must conform to the pleadings, the nature of the case
proved and the verdict. See TRCP 301; First Nat’l Bank v. Zimmerman, 442 S.W.2d 674,
678 (Tex. 1969).
The Rules of Civil Procedure do not provide for “additur” by courts to increase the
amount found as damages by juries in response to jury questions such as the questions
and findings involved in this appeal. Compare TRCP 315 (any party in whose favor a
judgment has been rendered may remit any part thereof). A trial court is limited in the
actions which it may take in regard to a jury finding on damages. If a jury finding has no
1
Further references to rules of civil procedure will be by reference to “TRCP_.”
Additionally, references to rules of appellate procedure will be by reference to “TRAP ___.”
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support in the evidence, the finding may be disregarded. See TRCP 301; Gulf, Colorado
& Santa Fe Ry. Co. v. Deen, 158 Tex. 466, 470-71, 312 S.W.2d 933, 937 (1958);
Campbell v. C.D. Payne & Geldermann Sec., 894 S.W.2d 411, 419 (Tex.App.--Amarillo
1995, writ denied). If the evidence was conclusive as to the matter so that no fact question
remained to be resolved by the jury and a directed verdict would have been proper, then
the finding may also be disregarded. See TRCP 301; Deen, 158 Tex. at 470-71, 312
S.W.2d at 937; Campbell, 894 S.W.2d at 419. If legally sufficient evidence supports a
finding of damages, but the jury’s damage finding is manifestly too small or too large, a
new trial may be granted, see TRCP 320, but that is all that may be done. See Deen, 158
Tex. at 470-71, 312 S.W.2d at 937. That is, no court is free to simply substitute its
judgment for that of the jury, see Larson v. Cactus Utility Co., 730 S.W.2d 640, 641 (Tex.
1987), or to reweigh the evidence, set aside a jury finding and make a different finding
merely because the court feels a different result is more reasonable. See Pool v. Ford
Motor Co., 715 S.W.2d 629, 634 (Tex. 1986). It is only when the evidence conclusively
establishes a different finding from that of the jury that a court may disregard the jury
finding and substitute the court’s finding for that of the jury. See Campbell, 894 S.W.2d
at 419; Scharer v. John’s Cars, Inc., 776 S.W.2d 228, 231 (Tex.App.--El Paso 1989, writ
denied).
If the trial court disregards a jury finding and enters judgment nov and such action
is challenged on appeal, the appellate standard of review is whether the jury finding was
supported by legally sufficient evidence. See Mancorp, Inc. v. Culpepper, 802 S.W.2d 226,
227 (Tex. 1990). A jury finding is not based on legally sufficient evidence if: (a) there is
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a complete absence of evidence to support the finding, (b) the court is barred by rules of
law or of evidence from giving weight to the only evidence offered to prove the matter
found, (c) the evidence offered to prove the matter found is no more than a mere scintilla,
or (d) the evidence conclusively establishes a different finding. See Merrell Dow Pharm.,
Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). When a party bears the burden of proof
and the jury fails to find for that party, a legal sufficiency of the evidence challenge to the
jury’s failure to find for the party entails two inquiries. See Sterner v. Marathon Oil Co., 767
S.W.2d 686, 690 (Tex. 1989). First, the record must be examined for evidence that
supports the jury’s failure to find for the party with the burden of proof. Second, if there is
no evidence to support the failure to make a finding, then the entire record must be
examined to see if a different proposition is established as a matter of law. Id.
In reviewing legal sufficiency issues, only evidence and inferences tending to
support the jury’s findings are considered, and evidence to the contrary is disregarded.
See Mancorp, Inc., 802 S.W.2d at 227-28. The review is of the evidence and inferences
to be drawn from the evidence as they tend to support the jury’s findings, and not as they
tend to support the judgment nov entered by the trial court. Id.
The factfinder, whether jury or trial court in a bench trial, is the sole judge of the
credibility of the witnesses and the weight to be given their testimony. See Leyva v.
Pacheco, 163 Tex. 638, 641, 358 S.W.2d 547, 549 (1962). The factfinder may believe one
witness and disbelieve another. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.
1986). The factfinder resolves inconsistencies in testimony. Id.
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The mental processes by which a jury determines the amount of damages is
ordinarily not cognizable by an appellate court. See Thomas v. Oldham, 895 S.W.2d 352,
359-60 (Tex. 1995); Zimmerman, 442 S.W.2d at 678; Prati v. New Prime, Inc., 949 S.W.2d
552, 555 (Tex.App.--Amarillo 1997, writ denied). Where the law does not provide a precise
legal measure of damages, the amount to be awarded is generally within the discretion of
the jury. See id. In assessing personal injury damages, the trier of fact has great
discretion in fixing the amount of the damage award. See McGalliard, 722 S.W.2d at 697.
Opinions and judgments of expert witnesses are not conclusive on the trier of fact. Id. A
jury generally may disregard a doctor's testimony on both the necessity of treatment and
on the causal relationship between the accident and the plaintiff's complaints. See
Johnson v. King, 821 S.W.2d 425, 428 (Tex.App.--Fort Worth 1991, writ denied). Expert
testimony as to whether an accident caused a particular injury is not binding upon a jury.
Id.; Hulsey v. Drake, 457 S.W.2d 453, 460 (Tex.Civ.App.--Austin 1970, writ ref'd n.r.e.).
And, such evidence regarding expenses incurred has evidentiary significance but is not
binding on the jury. See Prati, 949 S.W.2d at 556.
B. Analysis
We first consider Sandoval’s argument that Ponce did not preserve error. The first
judgment entered by the trial court reflected the jury verdict. It was only upon Sandoval’s
motion that the trial court entered judgment disregarding the jury findings. Ponce opposed
the motion to disregard the jury findings, both by written motion and oral argument. In both
instances Ponce asserted that the jury’s findings as to past medical were supported by
evidence, and that the jury’s failure to find a greater amount for past medical expenses was
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within the jury’s prerogative in evaluating the credibility of Sandoval’s claim and evidence
that her hypertension and expenses for its treatment were caused by the occurrence.
Ponce also asserted that the jury’s failure to find future medical expenses was likewise
within the jury’s discretion in evaluating the credibility of Sandoval’s claim and evidence
that her hypertension and expenses for its treatment were caused by the occurrence. The
record of the hearing on Sandoval’s motion to disregard the jury’s findings reflects that the
trial judge clearly understood Ponce’s contentions and the issues posed.
After the trial court entered its judgment notwithstanding the jury’s findings as to past
and future medical expenses, Ponce filed a Motion to Reconsider by which she contended
that the judgment nov was improper because the jury findings at issue were supported by
factually and legally sufficient evidence. In her motion Ponce cited appropriate authorities.
Ponce also moved the trial court to re-enter the original judgment which was based on the
jury findings. Both motions were overruled.
Ponce timely advised the trial court of her complaint with specificity, clearly
requested the relief she sought, and the trial court ruled on her request. She preserved
error as to issues one and three. See TRAP 33.1(a); Holland v. Wal-Mart Stores, Inc., 1
S.W.3d 91, 94 (Tex. 1999). Because we find issues one and three determinative of
Ponce’s appeal, we need not address Sandoval’s contention that Ponce did not preserve
error as to issue two.
We next address Ponce’s issues one and three complaining that the trial court erred
in granting judgment notwithstanding the jury’s verdict and in disregarding the jury findings
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on past and future medical expenses. The effect of entry of judgment based on the
granting of Sandoval’s First Amended Motion for Judgment Non Obstante Veredicto, for
Additur and/or for New Trial, was that the trial court determined that the jury findings of
expenses for past and future medical resulting from the occurrence were supported by
legally insufficient evidence. Unless the findings were supported by legally insufficient
evidence, the trial court had no authority to disregard the amounts found by the jury. See
TRCP 301; Deen, 158 Tex. at 470-71, 312 S.W.2d at 937; Campbell, 894 S.W.2d at 419;
Scharer, 776 S.W.2d at 231. The trial court was not authorized to enter judgment for an
amount in excess of the amounts found by the jury merely because the jury findings were
so against the weight and preponderance of the evidence as to be manifestly unjust, see
TRCP 320; Deen, 158 Tex. at 470-71, 312 S.W.2d at 937.
The language of Sandoval’s motion and the trial court’s letter and judgment
referencing “no evidence” to support the finding of $1,600 for past medical can only mean
that Sandoval and the trial court could not determine the jury’s thought processes and how
the jury arrived at its answer, which was less than the amount Dr. Philips opined was
reasonable and necessary; not that there was an absence of evidence to support an
answer of at least $1,600. Clearly there was evidence to support a finding of at least
$1,600, for the motion contended and the trial court found that evidence proved more than
the $1,600 found by the jury.
Neither Ponce nor Sandoval disputed the fact that Sandoval’s foot was run over by
the automobile Ponce was driving, that Sandoval went to the emergency room for
treatment, and that the first emergency room visit was necessary. The existence of
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Sandoval’s hypertension was not in dispute. Whether Sandoval’s hypertension was
causally related to the occurrence was disputed. Dr. Philips opined that it was related. Dr.
Philips also testified that heredity was a factor in hypertension, there were many causes
for hypertension but its major cause was unknown, twenty percent of the population had
hypertension, fifty percent of the population over age 65 had hypertension and often
patients did not know they had hypertension until after testing was done. He agreed that
although Sandoval did not report a history of hypertension, there was no way of being sure
whether she was hypertensive before the accident without having had her blood pressure
tested.
Evidence in the record would have supported a finding by the jury that Sandoval’s
past medical expenses resulting from the occurrence were greater than $1,600. But,
evidence also was legally sufficient to support a finding that Sandoval’s past medical
expenses resulting from the occurrence were $1,600, even though the trial court and
Sandoval could not fathom the exact mental processes of the jury in reaching its finding.
The questions of existence of preexisting conditions, aggravation of any such preexisting
conditions, and whether Sandoval failed to properly care for her injuries, if any, from the
occurrence were properly entrusted to the jury by the court’s charge. The jury was charged
to answer the questions posed to it based on the credible evidence and testimony before
it, as the jury determined such evidence fit within the instructions and questions in the jury
charge.
The opinion and judgment of Dr. Philips, as an expert witness, was not conclusive
on the issues of the causal relationship of all of Sandoval’s medical conditions or expenses
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to the occurrence - either those in the past, or those in the future. See McGalliard, 722
S.W.2d at 697. His opinions were only evidentiary as to the relationship of such expenses
to the occurrence and the amounts of such expenses. See Prati, 949 S.W.2d at 555-56.
The jury was free to disregard his opinion on such matters as they considered and weighed
all of the evidence and judged the appearance and credibility of the witnesses, including
Dr. Philips, and the weight to give the different parts of the evidence and testimony. See
Johnson, 821 S.W.2d at 428; Hulsey, 457 S.W.2d at 460.
We conclude that the jury’s finding of $1,600 for past medical expenses is supported
by legally sufficient evidence. We likewise conclude that (1) the jury’s failure to find that
Sandoval would incur future medical expense as a result of the occurrence is supported
by legally sufficient evidence, and (2) the evidence is not conclusive as to whether she
would incur future medical expense as a result of the occurrence, or the amount of any
such expenses. Accordingly, the trial court erred in disregarding the findings of the jury as
to Sandoval’s medical expenses in the past and those which she would incur in the future
as a result of the occurrence, and in entering judgment nov for past expenses for medical
care in the amount of $8,167.15 and future expenses for medical care in the amount of
$15,300. We sustain Ponce’s first and third issues.
IV. CROSS-POINTS: WERE THE JURY FINDINGS SUPPORTED
BY LEGALLY OR FACTUALLY SUFFICIENT EVIDENCE
A. Legal Sufficiency
By cross-points one, and three, Sandoval challenges the legal sufficiency of the
evidence to support the jury findings of her medical expense in the past and medical
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expense in the future. In reaching our conclusion as to Ponce’s first and third issues we
have determined that legally sufficient evidence supports the jury’s findings of past and
future medical expenses. Our reasoning and conclusions as to Ponce’s first and third
issues are determinative of Sandoval’s cross-points one and three, and those cross-points
are overruled.
In her cross-point five, Sandoval urges that the jury’s finding of zero damages for
loss of wage earning capacity in the future is not supported by any evidence. She thus
challenges the legal sufficiency of the evidence to support the finding. She does not,
however, assert that some specific amount was established as a matter of law.
Sandoval’s cross-point highlights the difficulty with a legal sufficiency challenge to
a jury finding of zero damages by the party with the burden of proof in a tort case. Even
if, in accordance with the first prong of our analysis for legal sufficiency, we were to
determine that there is no evidence to support the finding, Sandoval does not assert that
a particular sum of money has been conclusively established by the evidence. See
Sterner, 767 S.W.2d at 690. Therefore, her challenge fails the second part of the legal
sufficiency analysis which requires that we examine the entire record to see if a different
proposition is established as a matter of law. Id. The different or “contrary proposition” in
regard to Sandoval’s cross-point addressing loss of earning capacity in the future, is an
amount of money for such loss. See Jones v. Wallingsford, 921 S.W.2d 463, 464 n.1
(Tex.App.--Eastland 1996, no writ). A court of appeals exceeds its authority when it implies
a finding of actual damages in tort because a court of appeals cannot make original
findings of fact, it can only "unfind" facts. Bellefonte Underwriters Ins. Co. v. Brown, 704
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S.W.2d 742, 745 (Tex. 1986). Thus, where there is no contrary or different position from
the jury finding established as a matter of law so that judgment can be rendered for that
different amount, a legal sufficiency challenge will be overruled. See Jones, 921 S.W.2d
at 464 n.1. Accordingly, Sandoval’s fifth cross-point is overruled.
B. Factual Sufficiency
By cross-points two, four and six, respectively, Sandoval asserts that should we
sustain any of Ponce’s issues, then the case should be remanded for a new trial because
the jury’s findings as to her expenses for past medical care, future medical care and future
loss of wage earning capacity are so against the overwhelming weight and preponderance
of the evidence as to be manifestly wrong and unjust. See TRAP 38.2(b). We disagree.
If a finding is challenged for factual sufficiency of the evidence, all of the evidence
is reviewed, Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex. 1986), both favorable
and contrary to the findings. In re King’s Estate, 150 Tex. 662, 664-65, 244 S.W.2d 660,
661 (1951). We reverse on the basis of factual insufficiency only if the verdict is so against
the great weight and preponderance of the evidence that it is manifestly erroneous or
unjust. Id. In making our determination as to factual sufficiency assertions, we do not
reweigh the evidence and set the verdict aside merely because we feel that a different
result is more reasonable. Pool, 715 S.W.2d at 634. The factfinder, is the sole judge of
the credibility of the witnesses and the weight to be given their testimony. Leyva, 163 Tex.
at 641, 358 S.W.2d at 549. The factfinder resolves inconsistencies in testimony. See
McGalliard, 722 S.W.2d at 697.
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Medical records were introduced to document Sandoval’s treatment following the
occurrence. Those records showed that her complaints at the initial emergency room visit
following the occurrence focused on her foot and leg. Subsequently, her complaints and
treatments focused on her blood pressure difficulties and physical symptoms compatible
with hypertension. The records reflected findings of EKG changes and reports of chronic
anxiety. Evidence documented preexisting arthritic changes to both of her knees and
boney growths on her heel. Her medical records noted instances in which she did not
comply with instructions on care of her hypertension condition. Dr. Philips opined that he
believed the records were in error as to such notations of noncompliance, but he had not
discussed Sandoval’s case with the medical providers or Sandoval herself.
The jurors were charged to observe the witnesses, evaluate their demeanor and the
credibility of their testimony and resolve inconsistencies in the evidence. The evidence
clearly demonstrated physical trauma to Sandoval’s lower extremity resulting from the
occurrence. The jury had to determine the extent and duration of the trauma’s effects.
While the jury’s determinations might be different from those a trial court or appellate court
might have made, our review of all the evidence leads us to conclude that the findings are
not so against the great weight and preponderance of all the evidence as to be manifestly
erroneous or unjust. We overrule Sandoval’s cross-points two, four and six.
CONCLUSION
Having sustained Ponce’s issues challenging entry of judgment notwithstanding the
verdict, and having overruled Sandoval’s cross-points seeking to vitiate the jury verdict, we
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reverse the judgment of the trial court. We render judgment that Maria Sandoval recover
the sum of $1,275 from Judith Howell Ponce, less any credits or offsets due on such
amount, together with interest and taxable court costs in the trial court. We remand the
case to the trial court for entry of judgment in accordance with this opinion, including
determination and allowance of credits and offsets due to Ponce and for determination of
interest on the judgment. Costs of appeal are assessed against Sandoval.
Phil Johnson
Justice
Publish.
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