On April 20, 2012 a
Motion-Secondary
was filed
involving a dispute between
Wallace , Joni K,
and
Barfield , Elvin B,
for PERSONAL INJURY VEHICLE (GEN LIT )
in the District Court of Travis County.
Preview
6/16/2014 9:31:07 AM
Amalia Rodriguez-Mendoza
District Clerk
CAUSE NO. D-1-GN-12-001176 Travis County
D-1-GN-12-001176
JONI K. WALLACE § IN THE DISTRICT COURT
§
Plaintiff, §
§
vs. § 126" JUDICIAL DISTRICT
§
ELVIN B. BARFIELD §
§
Defendant. § TRAVIS COUNTY, TEXAS
PLAINTIFF’S OBJECTION TO THE COURT’S QUESTION ON DAMAGES AND FAILURE TO.
SEGREGATE PHYSICAL PAIN AND MENTAL ANGUISH
TO THE HONORABLE JUDGE OF SAID COURT:
Plaintiff files this Objection to the Court’s proposed jury question on damages, and
specifically the combining of physical pain and mental anguish. Plaintiff would respectfully
show the Court as follows:
1. In 2003, the Texas Legislature defined non-economic damages as “damages awarded
for the purpose of compensating a claimant for physical pain and suffering, mental or
emotional pain or anguish, loss of consortium, disfigurement, physical impairment, loss of
companionship and society, inconvenience, loss of enjoyment of life, injury to reputation, and
all other non-pecuniary losses of any kind other than exemplary damages.”
2. The Texas Supreme Court has held that a trial court is required to submit separate
elements of damage separately, and that the failure to do so can be reversible error if there
was insufficient evidence to support one or more combined elements of damage. See Harris
County v. Smith, 96 S.W.3d 230, 232-33 (Tex. 2002). In reaching its decision, the supreme
court cited the comment to the Texas Pattern Jury Charges question on damages, which
“suggests 'The use of a separate answer line for each element of damages might avoid the
need for a new trial if the appellate court finds that one or more, but not all, of the elements
Plaintiffs’ Objection on Damages Question Page 1lack legal or evidentiary support.” Id. (citing COMM. ON PATTERN JURY CHARGES, STATE BAR
OF TEX., TEXAS PATTERN JURY CHARGES-GENERAL NEGLIGENCE PJC 8.2 cmt. (2002)).
Currently, the comment to the basic question on damages in personal injury actions states that
“Broad form submission of multiple elements of damages may lead to harmful error if there is
a proper objection raising insufficiency of the evidence to support one or more of the elements
submitted,” citing Harris v. Smith. The comment further states “If there is a question about the
sufficiency of the evidence to support one or more of the elements, the Committee
recommends that the elements of damages be separately submitted.”
3. Since the Defendant has contested every aspect of this case, Plaintiff anticipates that if
she prevails, on appeal the Defendant will contest the sufficiency of the evidence to support
elements of damages as well.
4. It has long been the law in Texas that physical pain and mental anguish are separate
elements of damage. Courts have held that physical pain and mental anguish are in fact
separate and distinct elements of damage for personal injuries. See SunBridge Healthcare
Corp. v. Penny, 160 S.W.3d 230, 248 (Tex. App.--Texarkana 2005, no pet.); Leyendecker v.
Harlow, 189 S.W.2d 706, 711 (Tex. Civ. App.--Galveston 1945, writ ref'd w.o.m.); see also
Nowak Constr. Co. v. Avalos, 2012 Tex. App. LEXIS 1170 *20-21 (Tex. App. El Paso 2012).
Although the Texas Pattern Jury Charges place physical pain and mental anguish together as
one element of damages, the pattern charges serve as a guide only and are not binding on trial
courts. See Styers v. Schindler Elevator Corp., 115 S.W.3d 321, 325-26 (Tex.App.--Texarkana
2003, pet. denied).
WHEREFORE, Plaintiff requests that the Court submit physical pain and mental anguish
as separate elements of damage.
Plaintiffs’ Objection on Damages Question Page 2Respectfully submitted,
ByrD DAvis FURMAN & ALDEN, L.L.P.
/s/ Robert C. Alden
Robert C. Alden
State Bar No. 00979680
707 W. 34" Street
Austin, Texas 78705
Telephone: 512-454-3751
Facsimile: 512-451-5857
Email: ralden@byrddavis.com
CERTIFICATE OF SERVICE
| hereby certify that a true and correct copy of the foregoing document has been served
upon counsel of record by hand delivery on this 16" day of June, 2014:
Tom King
Law OFFice oF I.T. KING
5524 Bee Cave Rd., Bldg. B-1
Austin, TX 78746
Fax: 512-430-4757
/s/ Robert C. Alden
Robert C. Alden
Plaintiffs’ Objection on Damages Question Page 3
Document Filed Date
June 16, 2014
Case Filing Date
April 20, 2012
Category
PERSONAL INJURY VEHICLE (GEN LIT )
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6/16/2014 9:31:07 AM Amalia Rodriguez-Mendoza District Clerk CAUSE NO. D-1-GN-12-001176 Travis County D-1-GN-12-001176 JONI K. WALLACE § IN THE DISTRICT COURT § Plaintiff, § § vs. § 126" JUDICIAL DISTRICT § ELVIN B. BARFIELD § § Defendant. § TRAVIS COUNTY, TEXAS PLAINTIFF’S OBJECTION TO THE COURT’S QUESTION ON DAMAGES AND FAILURE TO. SEGREGATE PHYSICAL PAIN AND MENTAL ANGUISH TO THE HONORABLE JUDGE OF SAID COURT: Plaintiff files this Objection to the Court’s proposed jury question on damages, and specifically the combining of physical pain and mental anguish. Plaintiff would respectfully show the Court as follows: 1. In 2003, the Texas Legislature defined non-economic damages as “damages awarded for the purpose of compensating a claimant for physical pain and suffering, mental or emotional pain or anguish, loss of consortium, disfigurement, physical impairment, loss of companionship and society, inconvenience, loss of enjoyment of life, injury to reputation, and all other non-pecuniary losses of any kind other than exemplary damages.” 2. The Texas Supreme Court has held that a trial court is required to submit separate elements of damage separately, and that the failure to do so can be reversible error if there was insufficient evidence to support one or more combined elements of damage. See Harris County v. Smith, 96 S.W.3d 230, 232-33 (Tex. 2002). In reaching its decision, the supreme court cited the comment to the Texas Pattern Jury Charges question on damages, which “suggests 'The use of a separate answer line for each element of damages might avoid the need for a new trial if the appellate court finds that one or more, but not all, of the elements Plaintiffs’ Objection on Damages Question Page 1lack legal or evidentiary support.” Id. (citing COMM. ON PATTERN JURY CHARGES, STATE BAR OF TEX., TEXAS PATTERN JURY CHARGES-GENERAL NEGLIGENCE PJC 8.2 cmt. (2002)). Currently, the comment to the basic question on damages in personal injury actions states that “Broad form submission of multiple elements of damages may lead to harmful error if there is a proper objection raising insufficiency of the evidence to support one or more of the elements submitted,” citing Harris v. Smith. The comment further states “If there is a question about the sufficiency of the evidence to support one or more of the elements, the Committee recommends that the elements of damages be separately submitted.” 3. Since the Defendant has contested every aspect of this case, Plaintiff anticipates that if she prevails, on appeal the Defendant will contest the sufficiency of the evidence to support elements of damages as well. 4. It has long been the law in Texas that physical pain and mental anguish are separate elements of damage. Courts have held that physical pain and mental anguish are in fact separate and distinct elements of damage for personal injuries. See SunBridge Healthcare Corp. v. Penny, 160 S.W.3d 230, 248 (Tex. App.--Texarkana 2005, no pet.); Leyendecker v. Harlow, 189 S.W.2d 706, 711 (Tex. Civ. App.--Galveston 1945, writ ref'd w.o.m.); see also Nowak Constr. Co. v. Avalos, 2012 Tex. App. LEXIS 1170 *20-21 (Tex. App. El Paso 2012). Although the Texas Pattern Jury Charges place physical pain and mental anguish together as one element of damages, the pattern charges serve as a guide only and are not binding on trial courts. See Styers v. Schindler Elevator Corp., 115 S.W.3d 321, 325-26 (Tex.App.--Texarkana 2003, pet. denied). WHEREFORE, Plaintiff requests that the Court submit physical pain and mental anguish as separate elements of damage. Plaintiffs’ Objection on Damages Question Page 2Respectfully submitted, ByrD DAvis FURMAN & ALDEN, L.L.P. /s/ Robert C. Alden Robert C. Alden State Bar No. 00979680 707 W. 34" Street Austin, Texas 78705 Telephone: 512-454-3751 Facsimile: 512-451-5857 Email: ralden@byrddavis.com CERTIFICATE OF SERVICE | hereby certify that a true and correct copy of the foregoing document has been served upon counsel of record by hand delivery on this 16" day of June, 2014: Tom King Law OFFice oF I.T. KING 5524 Bee Cave Rd., Bldg. B-1 Austin, TX 78746 Fax: 512-430-4757 /s/ Robert C. Alden Robert C. Alden Plaintiffs’ Objection on Damages Question Page 3