Monica McCorkle v. Marcia M. Schonborn ( 2001 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Monica McCorkle

Appellant

Vs.                   No. 11-00-00304-CV  -- Appeal from Dallas County

Marcia M. Schonborn

Appellee

After a nonjury trial in which Marcia M. Schonborn and her attorney were the only witnesses who testified,  judgment was rendered that Schonborn recover $172,701.68 from Monica McCorkle.  McCorkle perfected a Arestricted appeal@ under TEX.R.APP.P. 30.^[1]   We affirm.

                                                                  Issue Presented

Appellant presents only one issue for appellate review under TEX.R.APP.P. 38.1(e).  That issue reads in full as shown:

The trial court erred in finding that the Appellant is Aindebted@ to Appellee at trial on the issue of damages in this post answer default case as Appellee failed to offer sufficient evidence and prove her case as in a judgment upon trial.

                                                                Background Facts

At the hearings on March 8 and March 13, 2000, Schonborn testified without objection to the facts surrounding the automobile accident on March 31, 1997, and to the injuries which she received in that accident. Schonborn=s attorney testified as to his actions to make sure that McCorkle and her liability insurance company were aware of the trial setting and that both of them had copies of the pleadings which had been filed.  Thirty-two exhibits were admitted into evidence without objection because neither appellant nor her attorney were present for the hearing.

                                                             Trial Court=s Judgment

The recitals in the trial court=s judgment state that appellant had filed an answer and had been given actual notice of the trial setting, that appellant did not appear at trial, and that the case had been tried to the court. The trial court=s judgment then states that, after Aconsideration of the evidence presented and pleading of the parties,@ the court finds that Schonborn should recover from McCorkle the sum of $172,701.68 plus post-judgment interest at the rate of 10 percent per annum from the date of judgment until paid.  The judgment also states that Schonborn=s damages consist of the following:

Past medical expenses:              $19,693.69

Past Physical Pain-Mental Anguish      50,000.00

Past Lost Physical Capacity                  50,000.00

Future Pain-Mental Anguish                10,153.31

Future Lost Physical Capacity              10,153.00

Prejudgment Interest                             32,701.68                   

                                                             Sufficiency of Evidence

Exhibit No. 1 is the police report which states that McCorkle=s vehicle Achanged lanes when unsafe.@  Exhibit No. 2 contains business records of Southwest Orthopedic Institute and James Montgomery, M.D., which discuss the treatment of Schonborn=s neck, back, and knee.  Exhibit No. 3 contains business records of St. Paul Southwest Imaging Center which show an X-ray diagnosis of abnormal triple phase study of the knees.  Exhibit No. 4 contains business records of White Rock Physical Therapy Clinic which show therapy for left knee and back pain.  Exhibit No. 5 contains business records of Southwestern Physical Therapy - Turtle Creek/Orthopaedic & Sports Physical Therapy which show treatment for Schonborn=s knee and back.  Exhibit No. 6 contains business records of Matrix Rehabilitation Walnut Hill which show treatment of Schonborn=s knee, neck, hip, and shoulders. Exhibit No. 7 contains business records of Genesis Medical Networks, Inc. showing a Aworsening condition@ with constant headache and intermittent migraines.  Exhibit No. 8 contains business records of Audrey Stein Goldings, M.D., concerning treatment for headaches.  Exhibit No. 9 contains business records of Neurology Consultants of Dallas showing right shoulder pain and headaches.  Exhibit No. 10 contains business records of Michael Katz, M.D., showing treatment for right shoulder discomfort.  Exhibit No. 11 contains business records of Open MRI relating to right shoulder pain.  Exhibit No. 12 contains business records of Renaud Rodrique, M.D./Southwest Pain Group showing an Aimpression@ of multiple sclerosis and lumbar radiculopathy. 

Exhibit No. 13 contains business records of Southwest Orthopedic Institute/James Montgomery, M.D., showing medical charges of $3,345.38.  Exhibit No. 14 contains business records from St. Paul Southwest Imaging Center showing charges of $242.85, $98.00, and $22.75.  Exhibit No. 15 contains business records of White Rock Physical Therapy Clinic showing charges for 12 days charged at $126.33 per day and one day charged at $196.33.  Exhibit No. 16 contains business records of Southwestern Physical Therapy - Turtle Creek/Orthopaedic & Sports Physical Therapy showing charges for a total of $1,282.00.  Exhibit No. 17 contains business records of Matrix Rehabilitation Walnut Hill showing charges for a total of $1,570.00.  Exhibit No. 18 contains business records from Genesis Medical Networks, Inc. showing charges for a total of $1,197.00.  Exhibit No. 19 contains business records of Doctors= Hospital showing charges for a total of $290.00.  Exhibit No. 20 contains business records of Audrey Stein Goldings, M.D., showing charges for a total of $262.00.  Exhibit No. 21 contains business records of Neurology Consultants of Dallas showing charges for a total of $802.00.  Exhibit No. 22 contains business records of Michael Katz, M.D., showing charges for a total of $397.00.  Exhibit No. 23 contains business records of Open MRI showing charges for $1,100.00 for May 5, 1998.  Exhibit No. 24 contains business records of Open MRI showing charges of $1,100.00 for July 13, 1998.  Exhibit No. 25 contains business records of Dallas Open MRI/Comprehensive Open MRI-Dallas showing a balance due of $1,100.00.  Exhibit No. 26 contains business records of Tom Thumb Pharmacy showing charges for a total of $966.32.  Exhibit No. 27 contains business records of Robert Bulger, M.D./Southwest Pain Group showing charges for a total of $1,898.00.  Exhibit No. 28 contains business records of Renaud Rodrique, M.D./Southwest Pain Group showing charges of $1,425.00, $1,850.00, and $85.00.  Exhibit No. 29 contains business records of Anna Tseng, M.D./Neurology Consultants showing charges of $185.00, $25.00, $32.00, $585.00, $85.00, and $60.00. 

Exhibit No. 30 is the certified letter which Schonborn=s attorney sent to McCorkle=s insurance company on June 10, 1999, with copies of the petition which had been served and with copies of the written interrogatories and requests for admissions.  Exhibit No. 31 is a copy of the letter from McCorkle=s insurance company acknowledging receipt of the June 10 letter.  Exhibit No. 32 contains the certified letters which were sent on July 2, 1999, to McCorkle and also to her insurance company advising them that the case had been set for trial and enclosing a copy of the trial court=s scheduling order.        

                                                                This Court=s Ruling

The issue presented for appellate review is overruled because TEX.R.EVID. 802 specifically provides that inadmissible hearsay evidence which is admitted without objection Ashall not be denied probative value merely because it is hearsay.@ Further, the business records were admissible as exceptions to the rule against hearsay.  See TEX.R.EVID. 803(1), (3), (4), (5), and (6). Consequently, there is evidence which supports the judgment of the trial court.  The trial court=s findings are not Aso against the great weight and preponderance of the evidence as to be manifestly unjust.@  In re King=s Estate, 244 S.W.2d 660, 661 (Tex.1951).

The judgment of the trial court is affirmed.

BOB DICKENSON

SENIOR JUSTICE

November 15, 2001

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of:  Arnot, C.J., and

McCall, J., and Dickenson, S.J.^[2]

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^[1]She did not participate, either in person or through counsel, in the hearings that resulted in the judgment complained of; and she did not timely file a post-judgment motion, request for findings of fact and conclusions of law, or a notice of appeal within the time permitted by TEX.R.APP.P. 26.1(a).

^[2]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.