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Date: 08-22-2017

Case Style: Melissa Patino-Perez, Individually and as Representative of the Estate of Marcelino Patino, Maria Patino-Perez and Ector Patino v. Nicholas K. Howland

Case Number: 01-16-00054-CV

Judge: Terry Jennings

Court: Texas Court of Appeals, First District on appeal from the 212th District Court, Galveston County

Plaintiff's Attorney: Lennon Wright and Keith D. Peterson

Defendant's Attorney: George William Vie III and Stephen R. Lewis Jr.

Description: Appellants, Melissa Patino-Perez, individually and as representative of the estate of Marcelino Patino, Maria Patino-Perez, and Ector Patino (collectively, “the Patinos”), challenge the trial court’s judgment, rendered after a trial to the court, in their suit for negligence and wrongful-death1 against appellee, Nicholas K. Howland. In four issues, the Patinos contend that the evidence is factually insufficient2 to support the trial court’s award of damages and the trial court erred in denying their motion for new trial.

We affirm in part and reverse and remand in part.

Background

In their Seventh Amended Petition, the Patinos alleged that on November 21, 2013, Howland, a medical resident at the University of Texas Medical Branch (“UTMB”), fell asleep while driving his automobile on F.M. 646 in League City, Texas. Howland’s car then crossed over the center line of the roadway and collided head-on with the car of Marcelino, the decedent. Ector, the driver of the decedent’s car, was injured in the collision, and the decedent, who was a passenger, was killed. The Patinos, who are the decedent’s children, brought claims against Howland for negligence and wrongful-death, alleging that he knew or should have known the risks of driving while sleep-deprived and his failure to maintain a single lane proximately caused Ector’s injuries and the decedent’s death.

1 See TEX. CIV. PRAC. & REM. CODE ANN. §§ 71.001–.012 (Vernon 2008 & Supp. 2016).

2 A complaint that that the amount of damages awarded is “against the great weight and preponderance of the evidence” is a complaint about factual sufficiency. Griffin v. Carson, No. 01–08–00340–CV, 2009 WL 1493467, at *2 (Tex. App.—Houston [1st Dist.] May 28, 2009, pet. denied) (mem. op.).

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Ector sought recovery of his medical expenses and damages for his physical pain, mental anguish, and past and future physical impairment. The Patinos each sought damages for lost wages and, for the wrongful death of the decedent, past and future pecuniary loss, mental anguish, and loss of companionship and society. And Melissa, as representative of the decedent’s estate, sought damages for the decedent’s funeral expenses. Collectively, the Patinos sought damages in the amount of at least $2,000,000.00.

Howland answered and executed a written “Stipulation of Liability,” as follows:

On November 21, 2013, shortly after 10:00 p.m., . . . Howland was driving eastbound on Highway 646 headed to his home when he momentarily fell asleep crossing the center line colliding with the vehicle driven by [Ector]. . . . Howland takes full responsibility for causing the accident in question.

At trial, Ector testified that on November 21, 2013, while he was driving the decedent home from work in his car, Howland’s car struck the decedent’s car “head-on.” Then Ector, seeing smoke, urged the decedent to exit the car, but he did not respond. Ector recalled being pulled from the wreckage by a bystander, lying on the ground, and being transported by ambulance to a hospital. He later learned that the decedent had died at the scene of the collision. The impact of the collision fractured Ector’s right femur, three ribs, his sternum, and a thoracic vertebra; injured ligaments in his right foot; dislocated a toe; and caused various lacerations on his

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face, chest, and hands. He underwent surgery to repair his leg fracture, and he remained hospitalized for five days. The trial court admitted into evidence Ector’s medical records and bills.

For eight months after he was discharged from the hospital, Ector lived with his mother. She, along with his girlfriend and sisters, assisted him with everyday tasks, including feeding himself, as he was unable to move his arms in front of his chest. In December 2013, the month after the collision, Ector visited an orthopedic physician at UTMB for “follow-up” treatment of his right leg and foot. Although UTMB referred Ector to a specialist, Dr. Panchbhavi, for further treatment of his foot, Ector did not follow through because his pain had “significantly improved since [his] surgery.” In January 2014, Ector again declined to see a foot specialist, reporting to his doctor that his pain had significantly improved. In April 2014, Dr. Robert Leisten, a podiatrist, treated Ector for a painful, swollen right foot. Although Leisten instructed Ector to stay off of his foot, apply ice for one week, and return if there was not improvement, Ector did not immediately return to him.

In September 2014, Ector, complaining of pain in his right foot, returned to see Dr. Leisten, who referred him to Dr. Amy Riedel. Three months later, in December 2014, Ector went to see Dr. Riedel, complaining of pain in his right foot. He reported to Riedel that he was not experiencing any nervousness, depression, anxiety, memory loss, or mental disturbances. Riedel opined that surgical

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intervention was needed to realign a dislocation in Ector’s foot, and she provided him with a “fracture boot” to wear until he could afford surgery. Ector agreed that in his March 2015 deposition, he had testified that his femur fracture and all of his injuries, except for his issues with his right foot and ankle, had healed satisfactorily. And he explained that at the time of trial, although he still had constant pain, he was not undergoing any medical treatment or physical therapy. However, although he was back living on his own at his apartment, he still relied on a “fracture boot,” wheelchair, or cane for assistance with getting around.

Ector explained that after the collision, he, due to his injuries, was unable to return to his position as a busboy at Don Julio’s restaurant. In regard to his lost wages, he noted that in December 2014, he became employed part-time as a cashier at a Jimmy John’s restaurant. Ector left Jimmy John’s in May 2015, however, because he experienced difficulty in standing for long periods of time. Thus, he accepted his current, as of the time of trial, position with an account management company, where he was able to work seated at a desk.

Ector, who was twenty years old at the time of the collision, further testified about his previous relationship with the decedent and how the decedent’s death had affected his life. When Ector was four years old, the decedent and his mother divorced, and he lived with the decedent “at first.” He then lived with his mother and visited the decedent on weekends. Although Ector, from sixth to eighth grade,

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lived with his mother, he was with the decedent “most of the time.” In 2011, Ector dropped out of high school and subsequently moved to Kentucky to live and work with the decedent. While in Kentucky, the decedent encouraged Ector to finish high school, and after Ector graduated in 2013, he and the decedent returned to Texas and lived together. The decedent then helped Ector to obtain a job and pay the deposit on his first apartment, buy furniture, and obtain car insurance. Over the last year of the decedent’s life, Ector and the decedent “became best friends.” They went fishing every weekend and played billiards, laser tag, and sports. Ector explained that the loss of his father has caused him to lose sleep at night, gives him nightmares “every day, two times a day,” and causes him to cry suddenly and uncontrollably. He described his pain as “unbearable,” noting that he no longer goes fishing because it brings back too many memories.

Melissa, who was twenty-five years old at the time of trial, testified that she was eight years old when the decedent and her mother divorced in 1998. Afterwards, Melissa lived with the decedent. In 2001, however, after the decedent had moved in with his girlfriend, Imelda Mancera, Melissa moved back in with her mother. Melissa explained that while the decedent lived with Mancera, “the relationship was strained” because Mancera did not want her, Ector, or Maria around her home. Thus, Melissa’s contact with the decedent became limited to telephone calls and holiday visits. In 2007, Melissa joined the United States Army. After her discharge in 2009,

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she lived with the decedent “off and on” and then moved into her own apartment. In 2012 or 2013, after the decedent and Mancera had broken up, the decedent began visiting Melissa on weekends or whenever he was in town. During his visits, they spent time together going fishing, playing soccer, and playing with her two children. Melissa noted that the decedent gave her parenting advice and contributed $100 to $200 per month toward the care of her children. She also noted that she took care of him and helped him with managing his finances. Melissa further explained that since the decedent’s death, she has suffered from insomnia and nightmares. She also testified about her lost wages and the decedent’s funeral expenses.

Maria, Melissa’s twin sister, testified that after the decedent’s divorce from her mother, she lived with her mother and visited the decedent during her vacations. After the decedent and Mancera had broken up, the decedent moved to Kentucky, and Maria drove Ector there to live and work with him. “Shortly after,” the decedent moved back to Texas, and Maria began to see him more. He occasionally stopped by and took her out to eat, and they spent time together while he fished. Maria explained that they had started a “whole new relationship,” she was “getting to know him all over again,” and his death has caused her to lose sleep.

Maria further testified that after Ector was discharged from the hospital, she took time off from work to care for him. Although he moved in with their mother, Maria lived in a nearby apartment and helped with his care. She explained that Ector

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was in extreme pain and had nightmares. Maria noted that he often called out or screamed at night, and she was unable to sleep during his episodes. She also testified about her lost wages.

At the close of trial, Ector requested damages in the amount of $85,593.04 for medical expenses; $12,046.25 for lost wages; $25,000.00 for future loss of earning capacity; $500,000.00 for past, and $1,000,000.00 for future, physical pain, mental anguish, disfigurement, and impairment; and $500,000.00 for past, and $500,000.00 for future, mental anguish and loss of companionship and society as a result of the decedent’s death. Melissa and Maria each requested damages in the amount of $728.00 for lost wages and $500,000.00 for past, and $500,000.00 for future, mental anguish and loss of companionship and society as a result of the decedent’s death. Melissa also requested damages in the amount of $7,159.00 for the decedent’s funeral expenses.

The trial court, after noting that Howland had stipulated to liability, awarded Ector damages in the amount of $85,593.04 for past medical expenses; $4,092.00 in past lost wages; $30,000.00 for past, and $20,000.00 for future, physical pain, mental anguish, disfigurement, and physical impairment; and $50,000 for “past pecuniary loss, loss of companionship and society[,] and mental anguish.” It awarded Melissa and Maria each damages in the amount of $728.00 for lost wages and $7,500.00 for “past pecuniary loss, loss of companionship and society[,] and mental anguish.”

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And it awarded Maria, in her capacity as representative of the decedent’s estate, damages in the amount of $7,159.00 for funeral expenses.

The Patinos filed a motion for new trial, asserting that the trial court’s damages awards were against the great weight and preponderance of the evidence. And the trial court denied the motion.

Factual Sufficiency

In the Patinos’ third issue, Ector argues that the evidence is factually insufficient to support the trial court’s award of $30,000.00 for his past, and $20,000.00 for future, pain, suffering, and physical impairment because he presented evidence that his injuries were serious and he continues to suffer pain in his right foot, which is non-weight bearing. He argues that the evidence is factually insufficient to support the trial court’s award of $4,092.00 for his lost wages because he presented evidence of lost wages totaling $12,046.25. And he argues that the evidence is factually insufficient to support the trial court’s award of $50,000.00 for his past mental anguish and loss of companionship and society, and to support its decision not to award him damages for his future mental anguish and loss of companionship and society, because he presented evidence that he had a close relationship with the decedent and has suffered insomnia, nightmares, and episodes of uncontrollable crying as a result of his death.

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In the Patinos’ first and second issues, Melissa and Maria argue that the evidence is factually insufficient to support the trial court’s award of $7,500.00 to each of them for their past mental anguish and loss of companionship and society, and to support its decision not to award them damages for their future mental anguish and loss of companionship and society, because they each presented evidence of a “close relationship” with the decedent and insomnia as a result of his death.

In a nonjury trial, when no findings of fact or conclusions of law are filed, as here, we imply that the trial court made all necessary findings to support its judgment. See Pharo v. Chambers Cty., 922 S.W.2d 945, 948 (Tex. 1996); Thompson v. HSBC Bank USA, No. 01-14-00589-CV, 2015 WL 3981799, at *3 (Tex. App.—Houston [1st Dist.] June 30, 2015, no pet.) (mem. op.). When a reporter’s record is filed, as here, the implied findings are not conclusive, and a party may challenge the factual sufficiency of the evidence supporting those findings. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002). The applicable standard of review is the same as those applied to review jury findings. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989). The trial court’s judgment must be affirmed if it can be upheld on any legal theory finding support in the evidence. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Aloysius v. Kislingbury, No. 01-13-00147-CV, 2014 WL 4088145, at *4 (Tex. App.—Houston [1st Dist.] Aug. 19, 2014, no pet.) (mem. op.).

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When a party challenges the factual sufficiency of an adverse finding on an issue on which it had the burden of proof, it must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). We review all of the evidence in a neutral light and will reverse only if the evidence supporting the finding is so contrary to the overwhelming weight of the evidence as to make the judgment clearly wrong and manifestly unjust. Id. The fact-finder is the sole judge of the witnesses’ credibility and may choose to believe one witness over another; a reviewing court may not impose its own opinion to the contrary. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003); Zenner v. Lone Star Striping & Paving L.L.C., 371 S.W.3d 311, 314 (Tex. App.—Houston [1st Dist.] 2012, pet. denied).

In reviewing the factual sufficiency of a damages award, we consider all the evidence that bears on the challenged category of damages, even if the evidence also relates to another category of damages. Jackson, 116 S.W.3d at 773. The fact-finder generally has discretion to award damages within the range of evidence presented at trial. Gulf States Utils., Co. v. Low, 79 S.W.3d 561, 566 (Tex. 2002). It may not, however, “arbitrarily assess an amount neither authorized nor supported by the evidence presented at trial.” First State Bank v. Keilman, 851 S.W.2d 914, 930 (Tex. App.—Austin 1993, writ denied). A rational basis for the calculation must exist. Id.

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Ector’s Pain, Suffering, and Physical Impairment

In reviewing the factual sufficiency of an award of damages for pain and suffering, we give great discretion to the fact-finder in determining the amount of damages it deems appropriate. Marquette Transp. Co. Gulf-Inland, LLC v. Jackson, No. 01-10-01025-CV, 2012 WL 1454476, at *9 (Tex. App.—Houston [1st Dist.] Apr. 26, 2012, no pet.) (mem. op.) (citing Marvelli v. Alston, 100 S.W.3d 460, 482 (Tex. App.—Fort Worth 2003, pet. denied)). “The process of awarding damages for amorphous, discretionary injuries such as . . . pain and suffering is inherently difficult because the alleged injury is a subjective, unliquidated, nonpecuniary loss.” Figueroa v. Davis, 318 S.W.3d 53, 62 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (quoting HCRA of Tex., Inc. v. Johnston, 178 S.W.3d 861, 871 (Tex. App.—Fort Worth 2005, no pet.)). Once the existence of some pain has been established, “there is no objective way to measure the adequacy of the amount awarded as compensation.” Id. “The amounts of damages awarded for pain and suffering . . . are necessarily speculative and each case must be judged on its own facts.” Id. (quoting Perez, 840 S.W.2d 75, 80–81). Physical pain and suffering may be established by circumstantial evidence. Id. “The duration of the pain . . . is an important consideration.” Id. “Pain and suffering may be inferred or presumed as a consequence of severe injuries.” Jackson, 2012 WL 1454476, at *11 (quoting Gen.
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Motors Corp. v. Burry, 203 S.W.3d 514, 552 (Tex. App.—Fort Worth 2006, pet. denied)).
“Physical impairment, sometimes called loss of enjoyment of life, encompasses the loss of the injured party’s former lifestyle.” Burry, 203 S.W.3d at 554; see Doctor, 186 S.W.3d at 18 (quoting Golden Eagle Archery, Inc., 116 S.W.3d at 772). “[L]oss of enjoyment of life fits best among the factors a fact-finder may consider in assessing damages for physical impairment. Indeed, if other elements such as pain, suffering, mental anguish, and disfigurement are submitted, there is little left for which to compensate under the category of physical impairment other than loss of enjoyment of life.” Golden Eagle Archery, Inc., 116 S.W.3d at 772. A plaintiff generally must show that his physical-impairment damages are substantial and extend beyond any pain, suffering, mental anguish, lost wages or diminished earning capacity. Burry, 203 S.W.3d at 555; see Golden Eagle Archery, Inc., 116 S.W.3d at 772 (claimant “should not be compensated more than once for the same elements of loss or injury”).
Ector testified that the impact of the collision fractured his right femur, three ribs, his sternum, and a thoracic vertebra; injured ligaments in his right foot; dislocated a toe; and caused various lacerations on his face, chest, and hands. Ector underwent surgery to repair his leg fracture, and he remained hospitalized for five days. For eight months after he was discharged from the hospital, Ector lived with
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his mother and remained on bed rest. She, along with his girlfriend and sisters, assisted him with everyday tasks, including feeding himself, as he was unable to move his arms in front of his chest.
However, Ector further testified that although one month after the collision UTMB referred him to a specialist for treatment of his foot, he did not attend the office visit. And he told his doctor that his pain had “significantly improved since [his] surgery.” One month later, UTMB again advised Ector to see a specialist. He declined, however, again reporting to his doctor that his pain had significantly improved. Three months later, Dr. Leisten, a podiatrist, treated Ector for a painful, swollen right foot. Although Leisten directed Ector to stay off of his foot, apply ice for one week, and return if there was no improvement, Ector did not immediately return to him.
In September 2014, Ector, complaining of pain in his right foot, returned to see Dr. Leisten, who referred him to Dr. Amy Riedel. However, Ector did not go to see Dr. Riedel until December 2014, when she determined that surgical intervention was needed to realign a dislocation in Ector’s foot, and she provided him with a “fracture boot” to wear until he could afford surgery. In his March 2015 deposition, Ector testified that his femur fracture and all of his injuries, except for the issues with his foot, had healed satisfactorily. And he explained that as of the time of trial, although he was still experiencing pain, he was not undergoing any medical
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treatment or physical therapy. However, although he was back to living on his own, he still relied on a fracture boot, wheelchair, or cane for assistance.
Again, we give great discretion to the fact-finder in determining the amount of damages it deems appropriate for “amorphous, discretionary injuries such as . . . pain and suffering” because, once the existence of some pain has been established, “there is no objective way to measure the adequacy of the amount awarded as compensation.” Figueroa, 318 S.W.3d at 62; see Jackson, 2012 WL 1454476, at *9. From the evidence, the trial court could have reasonably inferred that Ector suffered pain from his injuries and would continue to suffer pain in the future. See Jackson, 2012 WL 1454476, at *11 (“Pain and suffering may be inferred or presumed as a consequence of severe injuries.”); Figueroa, 318 S.W.3d at 63; Burry, 203 S.W.3d at 554 (physical impairment). However, the trial court also could have reasonably concluded that Ector’s pain was diminishing based on his testimony about his intermittent doctor visits and extended periods with no treatment, his testimony that he had not undergone any physical therapy and was not undergoing medical treatment at the time of trial, and his reports to his doctors that his pain had substantially improved. See Lee v. Huntsville Livestock Servs., Inc., 934 S.W.2d 158, 161 (Tex. App.—Houston [14th Dist.] 1996, no pet.) (fact-finder could reasonably conclude plaintiff’s pain more severe immediately after injury and would diminish with passage of time); Davis v. J. H. Rose Truck Lines, Inc., 578 S.W.2d
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421, 423 (Tex. Civ. App.—Houston [1st. Dist.] 1979, no writ) (fact-finder not required to believe witness, “particularly in testimony about subjective matters such as pain, even though his testimony is neither impeached nor contradicted”). Thus, we conclude that the trial court’s damages awards to Ector of $30,000.00 for past pain, suffering, and physical impairment, and $20,000.00 for future pain, suffering, and physical impairment, are not so against the great weight and preponderance of the evidence that they are manifestly unjust. See Figueroa, 318 S.W.3d at 63; see also Low, 79 S.W.3d at 566; Dow Chem. Co., 46 S.W.3d at 242.
Accordingly, we hold that the evidence is factually sufficient to support the trial court’s award of damages for Ector’s pain, suffering, and physical impairment.
We overrule this portion of the Patinos’ third issue.
Ector’s Lost Wages
In regard to his lost wages, Ector asserts that prior to the collision, he was earning $800.00 per month working as a busboy at Don Julio’s restaurant. After the collision, he missed nineteen months of work, a total of $15,200.00 in wages. From this amount, he subtracts $3,153.75, which he earned while working part-time at Jimmy John’s restaurant during the 19-month period, for a total of $12,046.25 in actual lost wages.
Lost wages refers to the “actual loss of income due to an inability to perform a specific job from the time of injury to the time of trial.” Hospadales v. McCoy,
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513 S.W.3d 724, 743 (Tex. App.—Houston [1st Dist.] 2017, no pet.); Dawson v. Briggs, 107 S.W.3d 739, 749 (Tex. App.—Fort Worth 2003, no pet.); Strauss v. Cont’l Airlines, Inc., 67 S.W.3d 428, 435 (Tex. App.—Houston [14th Dist.] 2002, no pet.). The measure of past lost wages is the sum that the plaintiff would have earned had he not been injured, less the sum that he did earn. See Koko Motel, Inc. v. Mayo, 91 S.W.3d 41, 52 (Tex. App.—Amarillo 2002, pet. denied); see also Geoscience Eng’g & Testing, Inc. v. Allen, No. 01-03-00402-CV, 2004 WL 2475280, at *6 (Tex. App.—Houston [1st Dist.] Nov. 4, 2004, pet. denied) (mem. op.) (proof of past lost wages generally requires evidence of plaintiff’s actual earnings before and after injury); 1 Tex. Prac. Guide Pers. Inj. 2d § 5:110 (“A claimant employed at the time of injury is entitled to recover all wages, commissions, bonuses, tips, overtime pay, pension rights and other benefits that were not paid, or will not be paid, because of absence from the job.”).
Ector testified that prior to being injured in the collision, he was working forty hours per week at Don Julio’s and had monthly earnings of $800.00, which included an hourly wage of $2.13. See Allen, 2004 WL 2475280, at *6. After being injured, he missed twelve months of work from December 2013 to November 2014. See id. In December 2014, Ector was forced to leave his job at Don Julio’s because his injuries prevented him from performing his job tasks. Consequently, from December 2014 to May 2015, he worked fifteen hours per week as a cashier at
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Jimmy John’s restaurant, where he earned $7.25 per hour, for a total of $3,153.75. Ector left Jimmy John’s in May 2015, however, because he had difficulty standing for long periods of time. From late May 2015 through trial in July 2015, he was employed by Zters, where he earned $13.50 per hour as a temporary worker. Ector noted that had he not been injured, he would have continued working at Don Julio’s restaurant. See Dawson, 107 S.W.3d at 750.
Multiplying Ector’s hourly wage of $2.13 at Don Julio’s by the forty hours that he worked per week, and multiplying the monthly total of $341.00 by the twelve months of work that he missed from December 2013 to November 2014 at Don Julio’s, results in a total of $4,092.00, the trial court’s award for lost wages. However, lost wages refers to the “actual loss of income” due to an inability to perform “a specific job” “from the time of injury to the time of trial.” Hospadales, 513 S.W.3d at 743 (emphasis added). The trial court’s award does not take into account Ector’s lost wages from December 2014 through trial in July 2015 or any amounts beyond his hourly rate.3 See id. Thus, we conclude that the trial court’s
3 We note that the Fair Labor Standards Act (“FLSA”), where it applies, allows employers to pay “tipped employees” an hourly rate of $2.13 if the total amount of tips that the employee receives from customers equals or exceeds the difference between such hourly rate and the federal minimum wage, currently $7.25. Steele v. Leasing Enters., Ltd., 826 F.3d 237, 242 (5th Cir. 2016) (citing 29 U.S.C. §§ 203(m)(2), 206(a)(1); 29 C.F.R. §§ 531.52, 531.59)); see also 29 U.S.C. § 206(a)(1)(C) (2006) (“Every employer shall pay to each of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, wages at the following rates: . . . $7.25 an hour . . . .”). But see 29
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award to Ector of $4,092.00 in damages for his past lost wages is so against the great weight and preponderance of the evidence that it is manifestly unjust. See Perez, 74 S.W.3d at 65–66.
Accordingly, we hold that the evidence is factually insufficient to support the trial court’s award to Ector for lost wages.
We sustain this portion of the Patinos’ third issue.
The Patinos’ Mental Anguish and Loss of Companionship
Adult children may recover damages for mental anguish and loss of companionship and society resulting from the wrongful death of a parent. Roberts v. Williamson, 111 S.W.3d 113, 125–27 (Tex. 2003); Reagan v. Vaughn, 804 S.W.2d 463, 466 (Tex. 1990). In wrongful-death cases, mental anguish and loss of companionship and society are distinguishable elements of an award and do not overlap. Moore v. Lillebo, 722 S.W.2d 683, 688 (Tex. 1986).
U.S.C. § 203(s)(1)(A)(ii) (“Enterprise engaged in commerce or in the production of goods for commerce” means an enterprise . . . . whose annual gross volume of sales made or business done is not less than $500,000. . . .”). Similarly, the Texas Minimum Wage Act (“TMWA”), where it applies, requires that employers pay employees in accordance with the federal minimum wage. Devore v. Lyons, No. 3:16-CV-01083-BN, 2016 WL 6277810, at *10 (N.D. Tex. Oct. 25, 2016) (plaintiff “not automatically entitled to compensation under the TMWA for any activity that is not compensable under the FLSA.”); see also TEX. LAB. CODE ANN. §§ 62.051 (Vernon 2015) (minimum wage), 62.052 (tipped employees), 62.151 (TMWA does “not apply to a person covered by the [FLSA]”). We express no opinion as to the applicability of the FLSA or TMWA to Ector’s claim.
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Mental anguish is the emotional pain, torment, and suffering that the plaintiff would, in reasonable probability, experience from the death of a family member. Id. Proof of mental anguish can include painful emotions such as grief, severe disappointment, indignation, wounded pride, shame, despair, public humiliation, or a combination of any or all of those feelings. Id. To support an award of mental anguish, a party must present either direct evidence of the nature, duration, and severity of her mental anguish, thereby establishing a substantial interruption in her daily routine, or circumstantial evidence of a high degree of mental pain and distress that is greater in degree than mere worry, anxiety, vexation, embarrassment, or anger. Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995); Thomas v. Uzoka, 290 S.W.3d 437, 455 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (claimant must demonstrate “high degree of mental suffering”).
Further, evidence of the existence of compensable mental anguish is not enough; there must also be some evidence to justify the amount awarded. Saenz v. Fid. Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996). While the impossibility of an exact evaluation of mental anguish requires that fact-finders be given a measure of discretion in finding damages, fact-finders cannot simply pick a number. Id. They must find an amount that “would fairly and reasonably compensate” for the loss. Id.
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“Companionship and society” refers to the “positive benefits flowing from the love, comfort, companionship, and society that the plaintiff would, in reasonable probability, have experienced” had the decedent lived. Moore, 722 S.W.2d at 688. “As compared with mental anguish, which emphasizes the negative impact of the wrongful death on the beneficiary, loss of companionship and society focuses on the removal of positive benefits that the beneficiary once enjoyed but which were taken away by the wrongful death.” Badall v. Durgapersad, 454 S.W.3d 626, 639 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (internal quotations omitted)). In awarding damages for mental anguish and loss of companionship and society in a wrongful-death case, however, the trier of fact may consider some of the same factors: (1) the relationship between the parent and child; (2) the living arrangements of the parties; (3) any absence of the deceased from the beneficiaries for extended periods; (4) the harmony of family relations; and (5) common interests and activities. Moore, 722 S.W.2d at 688.
Ector testified that when he was four years old, the decedent and his mother divorced, and he lived with the decedent “at first.” He later lived with his mother and visited the decedent on weekends. Although Ector, from sixth to eighth grade, lived with his mother, he was with the decedent “most of the time.” In 2011, Ector dropped out of high school and subsequently moved to Kentucky to live and work with the decedent. While in Kentucky, the decedent encouraged Ector to finish high
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school, and after Ector graduated in 2013, he and the decedent returned to Texas and lived together. The decedent then helped Ector obtain a job and pay the deposit on his first apartment, buy furniture, and obtain car insurance. Over the last year of the decedent’s life, he and the decedent “became best friends.” They went fishing every weekend and played billiards, laser tag, and sports. Ector explained that since the decedent’s death, he no longer goes fishing because it brings back too many memories. The decedent’s death has also caused him to lose sleep at night, gives him nightmares “every day, two times a day,” and causes him to cry suddenly and uncontrollably. He described the pain as “unbearable.”
In regard to his mental anguish, Ector testified that he was grieving the loss of the decedent, who was his father. Proof of mental anguish can include painful emotions such as grief. Uzoka, 290 S.W.3d at 455. And proof of a familial relationship constitutes “some” evidence that the surviving family members suffered mental anguish as a result of the death. Moore, 722 S.W.2d at 686. The trial court also had the benefit of observing Ector as he testified and could assess his emotional demeanor; this afforded some insight into the mental anguish he suffered. See Plasencia v. Burton, 440 S.W.3d 139, 149 (Tex. App.—Houston [14th Dist.] 2013, no pet.). Although Ector provided some details regarding the severity of his insomnia and nightmares, he also reported to Dr. Riedel in December 2014, one year after the decedent’s death, that he was not experiencing any nervousness, depression,
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anxiety, memory loss, or mental disturbances. See Parkway Co., 901 S.W.2d at 444 (award of mental anguish requires direct evidence of nature, duration, and severity, thereby establishing substantial interruption in daily routine, or circumstantial evidence of “high degree of mental pain and distress” greater in degree than mere worry, anxiety, vexation, embarrassment, or anger); Hawkins v. Walker, 238 S.W.3d 517, 527 (Tex. App.—Beaumont 2007, no pet.) (evidence factually insufficient where no evidence plaintiff suffered from depression, required any medical treatment to cope with decedent’s death, could no longer work as result of death, or death had significantly interfered with plaintiff’s daily activities).
“While we agree that in normal circumstances a [family member] will suffer grief from the loss of [another family member], whether such grief rises to the level of mental anguish that is compensable is generally within the province of the [fact-finder].” Moore, 722 S.W.2d at 686. “[A]ssessment of the resulting grief is a task for which [fact-finders] have traditionally been considered well-suited, and in which they can be properly expected to draw upon their own experience and empathy.” Russell v. Ramirez, 949 S.W.2d 480, 487 n.1 (Tex. App.—Houston [14th Dist.] 1997, no writ). From the evidence, the trial court could have reasonably concluded that although Ector suffered mental anguish over the decedent’s death, he, over time, was coping with his loss. See Hawkins, 238 S.W.3d at 527 (no evidence plaintiff continued to suffer severe grief reaction after initial shock from learning of
24
decedent’s death). Further, there is no testimony in the record that the mental anguish Ector was suffering over the decedent’s death caused him to miss work or significantly interfered with his daily activities. See id.
In regard to Ector’s loss of companionship and society, the trial court could have reasonably concluded that although his living arrangements varied and there were periods of absence, Ector maintained a close relationship with the decedent. See Moore, 722 S.W.2d at 688. They also shared common interests and activities. See id. Although the decedent had assisted Ector financially while he was growing up, the trial court could have taken into account Ector’s testimony that he is now an independent adult, with a job and his own car and apartment. Cf. Hawkins, 238 S.W.3d at 527, 532 (evidence factually insufficient to support “large damage award” for loss of companionship and society where no evidence plaintiff financially dependent on decedent).
Because damages for mental anguish and loss of companionship are “unliquidated and incapable of precise mathematical calculation, the [fact-finder] is given significant discretion in fixing the amount of the award,” so long as it has some evidentiary support. Uzoka, 290 S.W.3d at 454. We conclude that the trial court’s award of $50,000.00 to Ector for past mental anguish and loss of companionship and society is not so against the great weight and preponderance of the evidence that it is manifestly unjust. See Badall v. Durgapersad, 454 S.W.3d 626, 639 (Tex. App.—
25
Houston [1st Dist.] 2014, pet. denied); see also Golden Eagle Archery, Inc., 116 S.W.3d at 761; Gulf States Utils., Co., 79 S.W.3d at 566.
In regard to Ector’s complaint on appeal that the trial court erred in not awarding him damages for future mental anguish and loss of companionship and society, he does not direct us to any evidentiary support in the record or any authority in support of his assertion. See Uzoka, 290 S.W.3d at 454. We conclude that the trial court’s decision not to award Ector his requested damages for future mental anguish and loss of companionship and society is not so against the great weight and preponderance of the evidence that it is manifestly unjust. See Perez v. Lopez, 74 S.W.3d 60, 65–66 (Tex. App.—El Paso 2002, no pet.) (declining to award damages for loss of companionship and society not contrary to great weight and preponderance of evidence); see also Dow Chem. Co., 46 S.W.3d at 242.
Melissa and Maria also testified about their previous relationships with the decedent and how the decedent’s death had affected their lives. Although Melissa lived with the decedent for three years when she was a child and again “off and on” for two years after her discharge from the Army, her relationship with the decedent from 2001 to 2012 or 2013 consisted primarily of telephone calls and holiday visits. See Moore, 722 S.W.2d at 688. After the decedent moved back to Texas, he visited Melissa more often. And during his visits, they spent time together going fishing,
26
playing soccer, and playing with her two children. However, the collision occurred shortly thereafter, on November 21, 2013.
Although Melissa testified that the decedent gave her parenting advice and contributed $100 to $200 per month toward the care of her children, she did not specify when his contributions began or assert that she was at all dependent upon them.4 See Hawkins, 238 S.W.3d at 527 (evidence factually insufficient to support award for loss of companionship and society where no evidence plaintiff financially dependent on decedent). The trial court could have also taken into account Melissa’s testimony that she is an independent adult with a job and an apartment.
Maria testified that after her parents’ divorce, she lived with her mother and visited the decedent during her vacations, and she noted that she was always much closer to her mother. After the decedent and Mancera had broken up, the decedent moved to Kentucky. “Shortly after that,” the decedent moved back to Texas, and Maria began to see him more. Although she did not share his interest in fishing, she
4 We note that the trial court’s judgment also mentions “past pecuniary loss,” and the Patinos globally challenge the damages awarded “for the loss of their father.” In certain wrongful death actions, a beneficiary may recover damages for “pecuniary loss,” that is, the present value of the benefits, including money and other benefits that could be valued in terms of money, that the beneficiary could reasonably expect to have received from the deceased had he survived. Thomas v. Uzoka, 290 S.W.3d 437, 454 (Tex. App.—Houston [14th Dist.] 2009, pet. denied). These lost financial benefits may be recovered even in the absence of specific evidence of the amount of contributions made by the deceased before his death or that he would have continued to contribute in the future. Id. Here, however, there is no evidence beyond the mere mention of these contributions.
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sometimes accompanied him while he fished. And he would stop by and take her out to eat on occasion. Maria explained that they had started a “whole new relationship,” and she was “getting to know him all over again.”
In regard to Melissa’s and Maria’s mental anguish, they each testified that they were grieving the loss of the decedent, who was their father. See Uzoka, 290 S.W.3d at 455 (proof of mental anguish can include painful emotions such as grief). And proof of a familial relationship constitutes “some” evidence that the surviving family members suffered mental anguish as a result of the death. Moore, 722 S.W.2d at 686. Again, the trial court had the benefit of observing Melissa and Maria as they testified and could assess their emotional demeanor; this afforded some insight into the mental anguish they suffered. See Plasencia, 440 S.W.3d at 149. Although Melissa testified that since the decedent’s death, she has suffered from insomnia and nightmares, and Maria testified that she has lost sleep, neither provided any details regarding the severity or duration of these episodes; nor did they discuss any treatment sought. See Parkway Co., 901 S.W.2d at 444 (award of mental anguish requires direct evidence of nature, duration, and severity, thereby establishing substantial interruption in daily routine, or circumstantial evidence of “high degree of mental pain and distress” greater in degree than mere worry, anxiety, vexation, embarrassment, or anger); Hawkins, 238 S.W.3d at 527 (evidence factually insufficient where no evidence plaintiff suffered from depression, required any
28
medical treatment to cope with decedent’s death, could no longer work as result of death, or death had significantly interfered with plaintiff’s daily activities). Further, neither testified about any reasonable probability that compensable mental anguish would continue into the future. See Saenz, 925 S.W.2d at 614; see also Moore, 722 S.W.2d at 686 (“While we agree that in normal circumstances a [family member] will suffer grief from the loss of [another family member], whether such grief rises to the level of mental anguish that is compensable is generally within the province of the [fact-finder].”).
In regard to Melissa and Maria’s loss of companionship and society, the trial court could have reasonably concluded that prior to 2012 or 2013, they each had a sporadic and distant relationship with the decedent. See Moore, 722 S.W.2d at 688. It was not until 2012 or 2013, after the decedent had broken up with Mancera, moved to Kentucky, and then moved back to Texas, that Melissa and Maria began to visit with him with regularity and rebuild their relationships. Although they each testified that they were getting closer to the decedent, their relationships with him lasted only months before the collision and his death in November 2013. See Moore, 722 S.W.2d at 688; see also Hawkins, 238 S.W.3d at 527 (testimony plaintiff had close and loving relationship with decedent, regularly talked on telephone, shopped, and ate together insufficient to support award of non-pecuniary damages).
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Again, because damages for mental anguish and loss of companionship are “unliquidated and incapable of precise mathematical calculation, the [fact-finder] is given significant discretion in fixing the amount of the award,” so long as it has some evidentiary support. Uzoka, 290 S.W.3d at 454. We conclude that the trial court’s award of $7,500.00 each to Melissa and Maria for past mental anguish and loss of companionship and society is not so against the great weight and preponderance of the evidence that it is manifestly unjust. See Badall, 454 S.W.3d at 639; see also Golden Eagle Archery, Inc., 116 S.W.3d at 761; Gulf States Utils., Co., 79 S.W.3d at 566.
In regard to Melissa’s and Maria’s complaint on appeal that the trial court erred in not awarding them damages for future mental anguish and loss of companionship and society, they do not direct us to any evidentiary support in the record or any authority in support of their assertions. See Uzoka, 290 S.W.3d at 454. We conclude that the trial court’s decision not to award Melissa and Maria their requested damages for future mental anguish and loss of companionship and society is not so against the great weight and preponderance of the evidence that it is manifestly unjust. See Perez, 74 S.W.3d at 65–66.
Accordingly, we hold that the evidence is factually sufficient to support the trial court’s award of damages for the Patinos’ mental anguish and loss of companionship.
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We overrule the Patinos’ first, second, and remaining portions of their third issues.
Motion for New Trial5
In their fourth issue, the Patinos argue that the trial court erred in denying their motion for new trial because its damages awards are against the great weight and preponderance of the evidence.
When the party with the burden of proof moves for a new trial on the ground that the evidence is factually insufficient to support the damages awarded, we review the trial court’s denial of the motion for an abuse of discretion. Spring Creek Vill. Apts. Phase V, Inc. v. Gen. Star Indem. Co., 261 S.W.3d 206, 220–21 (Tex. App.—Houston [14th Dist.] 2008, no pet.). The Patinos, in their motion for new trial, presented the same arguments raised on appeal and addressed above. Accordingly, we hold that the trial court erred in denying the Patinos’ motion for new trial on the ground that the evidence is factually insufficient to support the trial court’s award to Ector for lost wages. We further hold that the trial court did not err in denying the
5 In a non-jury case, as here, a motion for new trial is not a prerequisite to complaining on appeal about the factual sufficiency of the evidence or inadequacy of damages. See TEX. R. CIV. P. 324.
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Patinos’ motion for new trial on the ground that the evidence is factually insufficient to support the trial court’s award of damages for Ector’s pain, suffering, and physical impairment and its award of damages for the Patinos’ mental anguish and loss of companionship.
We sustain the Patinos’ fourth issue in part and overrule it in part.

* * *

6 See Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 86 (Tex. 1992) (remanding to trial court for “new trial on the issue of lost profits”); Jackson v. Gutierrez, 77 S.W.3d 898, 904 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (remanding limited damages issues). Cf. Whitaker v. Rose, 218 S.W.3d 216, 224 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (remanding “all of the damage awards” where awards not separable).
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Outcome: We reverse the portion of the trial court’s judgment awarding Ector lost wages and remand the case to the trial court for a new trial on the issue of Ector’s lost wages.6 We affirm the remainder of the judgment of the trial court.

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