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Brief in Support of Judgment
Texas Law and Jurisprudence
The right to trial by jury is a fundamental right granted to all United States citizens by the Seventh Amendment of the United States Constitution[1] and to all Texas citizens by Article I, Section 15[2] and Article 5, Section 10 of the Texas Constitution.[3] The right to trial by jury was so sacred to our founding fathers that it almost prevented ratification of America’s Constitution.[4] Only after a promise to add a bill of rights, which included a right to trial by jury, was the Constitution ratified.[5]
The fundamental right to trial by jury is even more precious in Texas. In the Texas Declaration of Independence, Grievance Three complains that the Mexican Government “has failed and refused to secure, on a firm basis, the right of trial by jury that palladium of civil liberty, and the only safe guarantee for the life, liberty, and property of a citizen.”[6] To safeguard against this intrusion into a citizen’s individual rights, the Texas Constitution references the right to trial by jury in six sections, in contrast to the one reference in the United States Constitution.[7] The right to trial by jury is a sacred right in Texas jurisprudence.
Texas courts have applied this right by conducting strictly limited review of unliquidated damage awards.
Recently the Tyler Court of Appeals affirmed a damage verdict for future impairment and loss of earning capacity. It stated the following: “It is not within our power to second-guess the fact-finder unless only one inference can be drawn from the evidence. See State v. $11,014.00, 820 S.W.2d 783Plainview Motels, Inc v. Alston, 127 S.W.3d 21(Tex.App.—Tyler 2003, pet. denied)[8] In that case, the plaintiff produced evidence that the injury to his back impaired his ability to sleep and reduced his ability to run and bicycle with his kids. The Tyler Court of Appeals held this to be sufficient evidence to support the jury’s award for future physical impairment.[9], 785 (Tex.1991). If there is more than a scintilla of evidence to support the finding, the evidence is legally sufficient. See Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex.1993)”.
A damage determination must not be disturbed except in the extreme circumstance of manifest injustice. Both the Trial Court and Court of Appeals can only review a claim for excessive damages using the factual sufficiency standard. Pope v. Moore, 711 S.W.2d 622 (Tex. 1986) See Flanigan v. Carswell, 159 Tex. 598, 324 S.W. 2d 835,840 (1959)
The trial court and Court of Appeals must not second guess a jury’s deliberation unless “…it is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust.” Maritime Overseas Corporation v. Richard Ellis, 971 SW.2d 402(Tex. 1998), (affirming a $12,600,000 verdict).
The mere size of a jury verdict alone is not justification for supplanting the opinion of a court over that of a jury. Columbia Med. Ctr. Of Las Colinas v. Bush, 122 S.W. 3d 835 (Tex. App—Fort Worth 2003, pet. denied) (Indicating that the jury may render a $10,000,000 award for future medical expenses based on plaintiff’s condition at the time of trial and not based on expert testimony).
The same strong language, supporting a jury damage award can be found in: Harris v. Balderas, 949 S.W.2d 42, (Tex. App.—San Antonio 1997, no writ)[10]; Loftin v. Texas Brine Corp., 720 S.W. 2d 804, 805 (Tex. 1986); Cain v. Bain, 709 S.W2d. 175, 176 (Tex.1986)[11]; Southwest Texas Coors v. Morales, 948 S.W. 948, 950 (Tex. App.—San Antonio 1997, no writ). [12]
Cases overturning jury damage awards are easily distinguishable
In Wharf Cat Inc v. Cole, 567 S.W.2d 228, (Tex App—Corpus Christi 1978, writ ref’d nre) the court overturned a jury award for future earning capacity when the plaintiff, retired for seven years, testified that he didn’t want to go to work. The court acknowledged the Gold Standard of judicial review pronounced by Justice Calvert in 38 Texas L. Rev. 361, limiting review to “No Evidence” and “Insufficient Evidence” points of error. The court specifically reaffirmed the limited review of a jury’s damage award. “In disposing of ‘remittiture’ points, an appellate court…considers only evidence that is favorable to the award.” P230 “Because personal injury damages are unliqidated…the jury has large discretion…” P233
A jury award for $1,700,000 for mental anguish, supported only by the testimony of the plaintiff, over the death of an estranged adult daughter was determined to be excessive in Hawkins v. Walker 2007 TXCA9 09-96-287. The court distinguished the absence of evidence in this case from an opinion sustaining a verdict of $10,000,000 for loss of companionship and mental anguish caused by the death of two brothers.[13]
Bentley v. Bunton, 94 S.W. 3d 561, 605-607, (Tex 2001) is a decision concerning $7,000,000 award for mental anguish related to libel of a public official from a radio personality. No associated physical harm was involved and little evidence of anguish. The call as to whether the plaintiff had a viable cause of action was close. The court worried about the dampening effect of 1st amendment rights if such an award was allowed to stand.
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[1] U.S. Const. Amend VII.
[2] Tex. Const. art. I, 15, (“The right of trial by jury shall remain inviolate.”)
[3] Tex. Const. art. V, 10.
[4] Joseph Story, Commentaries on the Constitution of the United States 114 (Ronald K. Rotunda & John E. Nowak eds., Carolina Academic Press 1987) (1833).
[6] The Declaration of Independence (Repub. Tex. 1836), reprinted in H.P.N. Gammel, The Laws of Texas 1822-1897, at 1065 (Austin, Gammel Book Co. 1898).
[7] Tex. Const. art. I, 10, 15, 15a: art V, 10, 13, 17; art XVI 19 (repealed Nov. 6 2001)
[8] The Court overturned a small amount of the award related to physical impairment of plaintiff’s son. Unlike the case before this Court, there was no evidence of any kind reflecting loss of physical activities for the son.
[10] “ In assessing personal injury damages, we note that courts should use great restraint in overturning a jury verdict on sufficiency of the evidence. Carr, 884 S.W.2d at 800. The jury necessarily has great discretion in fixing the amount of the damage award. Bundick v. Weller, 705 S.W.2d 777, 783 (Tex.App.---San Antonio 1986, no writ), citing Roberts v. Tatum, 575 S.W.2d 138 (Tex.Civ.App.---Corpus Christi 1978, writ ref'd n.r.e.).” p 44
[11] “When reviewing a jury verdict to determine the factual sufficiency of the evidence, the court of appeals must consider and weigh all the evidence, and should set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex. 1985); In Re King's Estate, 150 Tex. 662, 664-65, 244 S.W.2d 660, 661 (1951).” p 176
[12]“Matters of pain and suffering, which are necessarily speculative and not subject to precise mathematical calculations, are particularly within the province of the jury to resolve and to determine appropriate amounts. Lee v. Huntsville Livestock Servs., Inc. 934 S.W.2d 158, 160 (Tex.App.---Houston [14th Dist.] 1996, no writ); Mercy Hosp. of Laredo v. Rios, 776 S.W.2d 626, 636 (Tex.App.---San Antonio 1989, writ denied). In determining future medical expenses, the jury is granted wide discretion, and may consider the nature of the injury, the medical care rendered in the past, and the condition of the injured party at the time of the trial. K Mart Corp. v. Rhyne, 932 S.W.2d 140, 144 (Tex.App.---Texarkana 1996, no writ); Beverly Enter. of Texas, Inc. v. Leath, 829 S.W.2d 382, 386 (Tex.App.---Waco 1992, no writ)” p 952
[13] General Chemical Corp. v. De La Lastra, 815 S.W. 750, 753-54 (Tex. App.—Corpus Christi 1991), aff’d in part, rev’d in part on other grounds, 852 S.W. 916(Tex. 1993)
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