Wal-Mart Stores, Inc. v. Almeida, Antonia ( 2000 )

NUMBER 13-99-763-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

WAL-MART STORES, INC.

, Appellant,

v.

ANTONIA ALMEIDA

, Appellee.

___________________________________________________________________

On appeal from the County Court at Law No. 2 of Cameron County, Texas.

___________________________________________________________________

O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and Rodriguez

Opinion by Chief Justice Seerden

Antonia Almeida was shopping in a Wal-Mart store when she slipped in a reddish liquid and fell, suffering personal injuries. A jury found Wal Mart 75% negligent and Almeida 25% negligent, and awarded Almeida $46,777.00 for past and future physical pain and mental anguish, physical impairment, and medical care. Wal-Mart appeals this judgment by two issues. We affirm the judgment of the trial court.

Failure to Supplement

In its first issue, Wal-Mart argues that the trial court erroneously allowed Almeida's chiropractor, Dr. Nancy Zimmerman, to testify about the results of an examination that she performed on Almeida the morning of trial. Wal-Mart contends that Almeida did not timely supplement her discovery responses with Zimmerman's new opinions or show good cause for its failure to supplement, and because Zimmerman's opinions changed materially and constituted surprise, Zimmerman's testimony about Almeida's examination should have been excluded. In response, Almeida argues that Wal-Mart failed to preserve this issue for review, or alternatively, that any error which may have occurred was harmless because Zimmerman's testimony was cumulative.

The relevant testimony regarding Zimmerman's examination of Almeida on the day of trial began during direct examination by Almeida's counsel, as follows:

Q: . . . Have you had occasion after she was last treated back in June of 1995 to see Ms. Almeida?

A: Yes, I did.

Q: Okay. And when was that?

A: I saw her this morning.

Q: And why did you see her this morning?

A: Before I came to testify I wanted to have a recent opinion and [an] x-ray of her spine.

Q: Why is that important to get something more recent?

A: I wanted to see if there had been a change in her condition.

Q: And what conditions specifically were you looking at?

A: The muscle spasm that she had along the cervical spine as well as in the x-rays. I wanted to see if there had been an acceleration of the arthritis in her neck.

Q: Okay. Back in 1995 when you first saw her did you see some arthritic condition in the neck?

A: Yes, I did.

Q: Okay. And describe the extent of that arthritic condition of the neck back in 1995.

A: She did have some --

Counsel: Your Honor. I'm going to object to this line of questioning. May we approach?

A bench conference was held off-the-record. After the recess, Almeida's counsel resumed questioning Dr. Zimmerman about Almeida's condition in 1995 immediately following the incident in question, and the results of her examination on the day of trial. Zimmerman testified that Almeida continued to have spasms on the left side of the cervical spine and along the left trapezius muscle, limited motion, pain with flexion, and hypersensitivity to the left arm. Although Zimmerman had initially diagnosed Almeida with a cervical sprain or strain, on the day of trial, Zimmerman opined that Almeida suffered from chronic cervical radiculitis, a permanent condition. Zimmerman further testified that the arthritis in Almeida's neck had worsened due to her injury, and would continue to "accelerate" in the future.

At this point in the questioning, a juror requested a break, and the judge ordered a brief recess. During the recess, Wal-Mart's counsel made the following statement:

In regard to my objection to his [sic] testimony. The testimony about today's visit Mr. Nunez had represented that we had not asked for records and in our request for production number two it says please attach to this instrument true and correct copies of all medical records, reports and medical bills in your possession . . .either actual or constructive arising out of the alleged injury subject to this lawsuit, and in connection with this request please execute the attached medical authorization and in interrogatory number 24 we ask if you claim any physical impairment as a result of this lawsuit, specifically identify the nature and degree of such impairment along with a specific medical opinion that supports your claim. And her answer was, I am, of course, much better now than I was immediately following the accident and my neck, jaw and knees bother [me] on occasion. On the basis of that Your Honor, failure to supplement those requests I'm asking that the testimony in regard to today's visit be stricken that's [sic] that the jury be instructed to disregard that testimony.

After a brief discussion, the trial court ordered the exclusion of the x-rays taken on the day of trial, but did not further rule on counsel's request to strike Zimmerman's testimony and to instruct the jury to disregard Zimmerman's testimony. After testimony resumed, counsel for Wal-Mart cross-examined Zimmerman about her opinions arising from that day's examination.

An objection to improper testimony must be timely made, the specific grounds therefore stated, and the trial court's ruling obtained. Beall v. Ditmore, 867 S.W.2d 791, 794 (Tex.App.--El Paso 1993, writ denied); see Tex. R. App. P. 33.1(a)(1); Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991)(objection waived when prematurely made); Top Value Ent. v. Carlson Mktg. Group, 703 S.W.2d 806, 811 (Tex.App.--El Paso 1986, writ ref'd n.r.e.)(objection waived when not made until subsequent recess and further waived by counsel's cross-examination).

Under the foregoing circumstances, we agree with appellee that this issue has not been preserved for appeal. Wal-Mart's counsel did not object until Almeida's attorney had asked Zimmerman several questions about the examination. Counsel objected immediately following testimony pertaining to Almeida's condition in 1995 rather than after testimony pertaining to the examination. The record fails to include the trial court's ruling on Wal-Mart's objection. The grounds for Wal-Mart's objection do not appear in the record until after additional testimony about the examination. Further, Wal-Mart's counsel cross-examined Zimmerman about the results of the examination. We overrule Wal-Mart's first issue.

Legal and Factual Sufficiency of Damages

In its second issue, Wal-Mart argues that the damages awarded by the jury are not supported by legally or factually sufficient evidence and are "grossly" excessive. Almeida responds that Wal-Mart waived this issue by failing to address all of the elements of damage in its argument, and further, that the evidence was legally and factually sufficient to support the jury's verdict.

In response to a broad form question, the jury awarded Almeida $6,777.00 for physical pain and mental anguish, physical impairment, and medical care occurring in the past, and $40,000.00 for physical pain and mental anguish, physical impairment, and medical care that would occur in the future. On appeal, Wal-Mart attacks the sufficiency of the evidence with regard to Almeida's physical pain and medical care, but does not address Almeida's physical impairment.

When a damage issue is submitted in broad form, ascertaining the amount the jury awarded for each element of damages is difficult, if not impossible. See Brookshire Bros., Inc. v. Lewis, 997 S.W.2d 908, 921-22 (Tex. App.--Beaumont 1999, pet. denied). An appellant who seeks to challenge a multi-element damage award on appeal must address each element and show the evidence is insufficient to support the entire award. See id. at 922; Price v. Short, 931 S.W.2d 677, 688 (Tex.App.­Dallas 1996, no writ); Greater Houston Transp. Co. v. Zrubeck, 850 S.W.2d 579, 589 (Tex. App.­Corpus Christi 1993, writ denied). The failure to address an element of damages results in waiver of the sufficiency challenge. Brookshire Bros., Inc., 997 S.W.2d at 922; Greater Houston Transp. Co., 850 S.W.2d at 579.

Wal-Mart's argument requires this Court to speculate about the components of the jury's award. It is improper for a reviewing court to engage in conjecture about the composition of a damage award. Duggan v. Marshall, 7 S.W.3d 888, 894 (Tex. App.­Houston [1^st Dist.] 1999, no pet.); Transit Management Co. of Laredo v. Sanchez, 886 S.W.2d 823, 826 (Tex. App.--San Antonio 1994, no writ); see Hernandez v. American Appliance Mfg. Corp., 827 S.W.2d 383, 389 (Tex. App.--Corpus Christi 1992, writ denied). We therefore cannot analyze Wal-Mart's challenge regarding Almeida's damages because this would entail speculation about how the jury divided its award among the various elements. See Thomas v. Oldham, 895 S.W.2d 352, 359-60 (Tex. 1995).

However, even if Wal-Mart had not waived the issue, its challenge to the sufficiency of the evidence of the damages would lack merit. Almeida incurred $1,254 in past medical expenses, plus additional expenses for pain medication. Almeida testified that her injuries caused her to feel frustrated and depressed, and that she could no longer perform many of the routine tasks that she had previously performed. Almeida and Zimmerman presented uncontradicted evidence at trial that Almeida suffered a permanent injury causing ongoing pain and physical impairment. Zimmerman testified that Almeida's condition was not going to improve, but was apt to worsen over time, and that Almeida would require future treatment and medication. Therefore, if Wal-Mart had preserved its right to challenge the sufficiency of the evidence, we would hold that the jury's damages award was supported by sufficient evidence. We overrule Wal-Mart's second issue.

Having overruled each of Wal-Mart's issues, we affirm the judgment of the trial court.

ROBERT J. SEERDEN, Chief Justice

Do not publish

.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 14th day of December, 2000.