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FILED
DALLAS COUNTY
PM
10/1 8/2019 5:37
FELICIA PITRE
DISTRICT CLERK
Cassandra Walker
CAUSE NO. DC-18-05402
EARMON LOVERN, IN THE DISTRICT COURT OF
PEGGY LOVERN, and
STORMY LOVERN
Plaintiff,
V.
WWWWWWWWWWWW
DALLAS COUNTY, TEXAS
EAGLERIDGE OPERATING, LLC,
USG PROPERTIES BARNETT II, LLC,
Defendants. 192ND JUDICIAL DISTRICT
DEFENDANT EAGLERIDGE OPERATING, LLC’S RESPONSE TO PLAINTIFFS’
BRIEF REGARDING CHARGE SUBMISSIONS FOR DAMAGES FOR PHYSICAL
PAIN AND MENTAL ANGUISH
To the Honorable Judge of said Court.
COMES NOW Defendant Eagleridge Operating, LLC, and files this Response t0
Plaintiff’s Brief Regarding Charge Submissions for Damages for Physical Pain and Mental
Anguish and would respectfully show the Court as follows:
I. Plaintiff’s brief is untimely
Plaintiffs’ brief is premature. While proposed jury charges have been filed, no evidence
has been heard, the charge conference has yet t0 be set, and the Court has not presented a jury
charge t0 the parties for comment and obj ections.
It appears, Plaintiffs are concerned there may be insufficient evidence t0 support their
claims of physical pain and/or mental anguish and would have the Court deviate from the Pattern
Jury Charge. Plaintiffs protest the Pattern Jury Charge coupling physical pain and mental anguish
within in the same element of the charge; they would rather have the two damage types considered
independently. However, if Plaintiffs’ are concerned about mustering sufficient evidence t0
support their claims 0f mental anguish, the appropriate course of action is t0 omit mental anguish
DEFENDANT EAGLERIDGE OPERATING, LLC.’S RESPONSE TO PLAINTIFFS’ BRIEF REGARDING
CHARGE SUBMISSIONS FOR DAMAGES FOR PHYSICAL PAIN AND MENTAL ANGUISH Page 1 0f 5
from the charge all together and Vice versa as itrelates to physical pain rather than to submit an
unsupported damages claim t0 the jury.
II. Physical pain and mental anguish are correlative.
Generally, there are two categories 0f damages, economic and non-economic. Golden
Eagle Archery, Inc. v.Jackson, 116 S.W.3d 757, 763, (Tex. 2003). Economic damages compensate
an injured party for lost wages, lost earning capacity, and medical expenses; While non-economic
damages compensate a party for pain, suffering, mental anguish, and disfigurement. Id. Texas has
authorized recovery of mental anguish damages in Virtually all personal injury actions. Johnson v.
Methodist Hosp, 226 S.W.3d 525, 529, (TeX.App.—H0uston [1“ Dist] 2006) (n0 pet), see Dabbs
v. Calderon, 2015 Tex. App. LEXIS 8641 (TeX.App.—Houst0n [1“ Dist.]) (no pet). Where a party
has suffered a serious bodily injury, it is understood that some degree 0f physical and mental
suffering results from the injury. Id.
The Texas Pattern Jury Charge generally combines physical pain and mental anguish.
When physical pain and mental anguish are charged together, sufficient evidence 0f either harm
can support an award When the two are charged together. Figueroa v.Davis, 318 S.W.3d 53, 63
(Tex. App.—Houston [lst Dist] 2010, no pet).
III. It is not necessary that physical pain and mental anguish be separately charged.
While the Texas Rules 0f Civil Procedure and the Texas Supreme Court encourage broad
form jury charges, there are times when broad charges ought to be distilled down into individual
charges. Such an instance is “when a trial court submits a single broad-form liability question
incorporating multiple theories of liability, [such an] error is harmful and anew trial is required
when the appellate court cannot determine whether the jury based itsverdict on an improperly
submitted invalid theory.” Crown Life Ins. C0. v. Casteel, 22 S.W.3d 378, 388, (Tex. 2000).
DEFENDANT EAGLERIDGE OPERATING, LLC.’S RESPONSE TO PLAINTIFFS’ BRIEF REGARDING
CHARGE SUBMISSIONS FOR DAMAGES FOR PHYSICAL PAIN AND MENTAL ANGUISH Page 2 0f 5
The Supreme Court 0f Texas expanded its holding against incorporating multiple theories
0f liability into the jury charge in the Casteel case t0 include multiple elements of damage in Harris
County v. Smith, 96 S.W.3d 230 (TeX. 2002). The court ruled mixing valid and invalid elements
0f damages in a single broad-form submission is harmful error. Id. However, the jury charges at
issues in Harris County v. Smith were not based 0n the pattern jury charge. Instead, the two charges
at issues in Harris County v. Smith allowed the jury t0 consider several types 0f damages in one
damage award to each Plaintiff. Id at 231-32:
“Question 3 stated that When determining Lynn Smith's damages, if any, the jury could
consider:
a. Physical pain and mental anguish.
b. Loss 0f earning capacity.
c. Physical impairment.
d. Medical care.
Jury Question 4 instructed the jury that When determining Erica Smith's damages, if any, it
could consider the following elements:
a. Physical pain and mental anguish.
b. Physical impairment.
c. Medical care.”
The error stemmed from a lack of evidence to support the claims for lost earning capacity in
question 3 and physical impairment in question 4. Id. The charges in Harris County mixed several
types 0f unrelated damages claims together for the jury to consider When awarding all damages to
the Plaintiffs. The Pattern Jury Charge does not present the question of damages in this problematic
manner; rather, itprovides blanks for each category 0f damage so the jury can allot individual
damages t0 each claim. Because the Pattern Jury Charge individually lists the damage elements
and mental anguish and physical pain are related in personal injury cases, there is littlechance for
the same confusion to arise in this case as itdid in Harris County. Supra.
DEFENDANT EAGLERIDGE OPERATING, LLC.’S RESPONSE TO PLAINTIFFS’ BRIEF REGARDING
CHARGE SUBMISSIONS FOR DAMAGES FOR PHYSICAL PAIN AND MENTAL ANGUISH Page 3 0f 5
IV. Conclusion
The issues presented by Plaintiffs brief are not ripe for consideration, and even if ripe,
which is denied, the proposed submission should be denied as the matter is sufficiently specified
for in the Pattern Jury Charge.
Respectfully submitted,
THE MILLER LAW FIRM
/s/J.J. Knaufl
J.J. KNAUFF
State Bar No. 240325 1 7
jknauff@tmlfpc.com
Turtle Creek Centre
381 1 Turtle Creek B1Vd., Ste 1950
Dallas, Texas 752 1 9
(469) 9 1 6-2552
(469) 9 1 6-25 55 facsimile
COUNSEL FOR
EAGLERIDGE OPERATING, LLC
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing document was sent to counsel
of record as reflected below on this 18th day of October 2019, Via:
Via E-Filing
Jason B. Stephens
Seth M. Anderson
John M. Cummings
B. Adam Drawhorn
Stephens, Anderson & Cummings, LLP
4200 West Vickery Blvd.
Fort Worth, Texas 76 1 07
Counselfor Plaintiff
Via E-Filing
Douglas D. Fletcher
DEFENDANT EAGLERIDGE OPERATING, LLC.’S RESPONSE TO PLAINTIFFS’ BRIEF REGARDING
CHARGE SUBMISSIONS FOR DAMAGES FOR PHYSICAL PAIN AND MENTAL ANGUISH Page 4 of 5
Keith A. Robb
Matthew Skidmore
Fletcher, Farley, Shipman
& Salinas, LLP
9201 N. Central Expressway, Suite 600
Dallas, Texas 75231
Counsel for USG Properties
/s/ J.J. Knauff
___________________________________
J.J. KNAUFF
DEFENDANT EAGLERIDGE OPERATING, LLC.’S RESPONSE TO PLAINTIFFS’ BRIEF REGARDING
CHARGE SUBMISSIONS FOR DAMAGES FOR PHYSICAL PAIN AND MENTAL ANGUISH Page 5 of 5
Preview
FILED DALLAS COUNTY PM 10/1 8/2019 5:37 FELICIA PITRE DISTRICT CLERK Cassandra Walker CAUSE NO. DC-18-05402 EARMON LOVERN, IN THE DISTRICT COURT OF PEGGY LOVERN, and STORMY LOVERN Plaintiff, V. WWWWWWWWWWWW DALLAS COUNTY, TEXAS EAGLERIDGE OPERATING, LLC, USG PROPERTIES BARNETT II, LLC, Defendants. 192ND JUDICIAL DISTRICT DEFENDANT EAGLERIDGE OPERATING, LLC’S RESPONSE TO PLAINTIFFS’ BRIEF REGARDING CHARGE SUBMISSIONS FOR DAMAGES FOR PHYSICAL PAIN AND MENTAL ANGUISH To the Honorable Judge of said Court. COMES NOW Defendant Eagleridge Operating, LLC, and files this Response t0 Plaintiff’s Brief Regarding Charge Submissions for Damages for Physical Pain and Mental Anguish and would respectfully show the Court as follows: I. Plaintiff’s brief is untimely Plaintiffs’ brief is premature. While proposed jury charges have been filed, no evidence has been heard, the charge conference has yet t0 be set, and the Court has not presented a jury charge t0 the parties for comment and obj ections. It appears, Plaintiffs are concerned there may be insufficient evidence t0 support their claims of physical pain and/or mental anguish and would have the Court deviate from the Pattern Jury Charge. Plaintiffs protest the Pattern Jury Charge coupling physical pain and mental anguish within in the same element of the charge; they would rather have the two damage types considered independently. However, if Plaintiffs’ are concerned about mustering sufficient evidence t0 support their claims 0f mental anguish, the appropriate course of action is t0 omit mental anguish DEFENDANT EAGLERIDGE OPERATING, LLC.’S RESPONSE TO PLAINTIFFS’ BRIEF REGARDING CHARGE SUBMISSIONS FOR DAMAGES FOR PHYSICAL PAIN AND MENTAL ANGUISH Page 1 0f 5 from the charge all together and Vice versa as itrelates to physical pain rather than to submit an unsupported damages claim t0 the jury. II. Physical pain and mental anguish are correlative. Generally, there are two categories 0f damages, economic and non-economic. Golden Eagle Archery, Inc. v.Jackson, 116 S.W.3d 757, 763, (Tex. 2003). Economic damages compensate an injured party for lost wages, lost earning capacity, and medical expenses; While non-economic damages compensate a party for pain, suffering, mental anguish, and disfigurement. Id. Texas has authorized recovery of mental anguish damages in Virtually all personal injury actions. Johnson v. Methodist Hosp, 226 S.W.3d 525, 529, (TeX.App.—H0uston [1“ Dist] 2006) (n0 pet), see Dabbs v. Calderon, 2015 Tex. App. LEXIS 8641 (TeX.App.—Houst0n [1“ Dist.]) (no pet). Where a party has suffered a serious bodily injury, it is understood that some degree 0f physical and mental suffering results from the injury. Id. The Texas Pattern Jury Charge generally combines physical pain and mental anguish. When physical pain and mental anguish are charged together, sufficient evidence 0f either harm can support an award When the two are charged together. Figueroa v.Davis, 318 S.W.3d 53, 63 (Tex. App.—Houston [lst Dist] 2010, no pet). III. It is not necessary that physical pain and mental anguish be separately charged. While the Texas Rules 0f Civil Procedure and the Texas Supreme Court encourage broad form jury charges, there are times when broad charges ought to be distilled down into individual charges. Such an instance is “when a trial court submits a single broad-form liability question incorporating multiple theories of liability, [such an] error is harmful and anew trial is required when the appellate court cannot determine whether the jury based itsverdict on an improperly submitted invalid theory.” Crown Life Ins. C0. v. Casteel, 22 S.W.3d 378, 388, (Tex. 2000). DEFENDANT EAGLERIDGE OPERATING, LLC.’S RESPONSE TO PLAINTIFFS’ BRIEF REGARDING CHARGE SUBMISSIONS FOR DAMAGES FOR PHYSICAL PAIN AND MENTAL ANGUISH Page 2 0f 5 The Supreme Court 0f Texas expanded its holding against incorporating multiple theories 0f liability into the jury charge in the Casteel case t0 include multiple elements of damage in Harris County v. Smith, 96 S.W.3d 230 (TeX. 2002). The court ruled mixing valid and invalid elements 0f damages in a single broad-form submission is harmful error. Id. However, the jury charges at issues in Harris County v. Smith were not based 0n the pattern jury charge. Instead, the two charges at issues in Harris County v. Smith allowed the jury t0 consider several types 0f damages in one damage award to each Plaintiff. Id at 231-32: “Question 3 stated that When determining Lynn Smith's damages, if any, the jury could consider: a. Physical pain and mental anguish. b. Loss 0f earning capacity. c. Physical impairment. d. Medical care. Jury Question 4 instructed the jury that When determining Erica Smith's damages, if any, it could consider the following elements: a. Physical pain and mental anguish. b. Physical impairment. c. Medical care.” The error stemmed from a lack of evidence to support the claims for lost earning capacity in question 3 and physical impairment in question 4. Id. The charges in Harris County mixed several types 0f unrelated damages claims together for the jury to consider When awarding all damages to the Plaintiffs. The Pattern Jury Charge does not present the question of damages in this problematic manner; rather, itprovides blanks for each category 0f damage so the jury can allot individual damages t0 each claim. Because the Pattern Jury Charge individually lists the damage elements and mental anguish and physical pain are related in personal injury cases, there is littlechance for the same confusion to arise in this case as itdid in Harris County. Supra. DEFENDANT EAGLERIDGE OPERATING, LLC.’S RESPONSE TO PLAINTIFFS’ BRIEF REGARDING CHARGE SUBMISSIONS FOR DAMAGES FOR PHYSICAL PAIN AND MENTAL ANGUISH Page 3 0f 5 IV. Conclusion The issues presented by Plaintiffs brief are not ripe for consideration, and even if ripe, which is denied, the proposed submission should be denied as the matter is sufficiently specified for in the Pattern Jury Charge. Respectfully submitted, THE MILLER LAW FIRM /s/J.J. Knaufl J.J. KNAUFF State Bar No. 240325 1 7 jknauff@tmlfpc.com Turtle Creek Centre 381 1 Turtle Creek B1Vd., Ste 1950 Dallas, Texas 752 1 9 (469) 9 1 6-2552 (469) 9 1 6-25 55 facsimile COUNSEL FOR EAGLERIDGE OPERATING, LLC CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing document was sent to counsel of record as reflected below on this 18th day of October 2019, Via: Via E-Filing Jason B. Stephens Seth M. Anderson John M. Cummings B. Adam Drawhorn Stephens, Anderson & Cummings, LLP 4200 West Vickery Blvd. Fort Worth, Texas 76 1 07 Counselfor Plaintiff Via E-Filing Douglas D. Fletcher DEFENDANT EAGLERIDGE OPERATING, LLC.’S RESPONSE TO PLAINTIFFS’ BRIEF REGARDING CHARGE SUBMISSIONS FOR DAMAGES FOR PHYSICAL PAIN AND MENTAL ANGUISH Page 4 of 5 Keith A. Robb Matthew Skidmore Fletcher, Farley, Shipman & Salinas, LLP 9201 N. Central Expressway, Suite 600 Dallas, Texas 75231 Counsel for USG Properties /s/ J.J. Knauff ___________________________________ J.J. KNAUFF DEFENDANT EAGLERIDGE OPERATING, LLC.’S RESPONSE TO PLAINTIFFS’ BRIEF REGARDING CHARGE SUBMISSIONS FOR DAMAGES FOR PHYSICAL PAIN AND MENTAL ANGUISH Page 5 of 5