FIFTH CLUB, INC. AND DAVID A. WEST v. ROBERTO RAMIREZ (Dissenting)

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State: Texas

Court: Supreme Court

Docket No: 04-0550

Case Date: 06/30/2006

Judge: Don R. Willett

Plaintiff: FIFTH CLUB, INC. AND DAVID A. WEST

Defendant: ROBERTO RAMIREZ (Dissenting)

Preview:FIFTH CLUB, INC. AND DAVID A. WEST v.
ROBERTO RAMIREZ (Dissenting)
MAJORITY | CONCURRING | DISSENTING
IN THE SUPREME COURT OF TEXAS
No. 04-0550
Fifth Club, Inc. and David A. West,
Petitioners,
v.
Roberto Ramirez, Respondent
On Petition for Review from the
Court of Appeals for the Third District of Texas
Argued October 18, 2005
Justice Willett, joined by Justice Hecht, Justice Wainwright, and Justice Johnson, dissenting in part.
I join fully in the reasoning and conclusions set forth in Parts I III of the majority opinion, but disagree with Part IV s
discussion regarding future mental anguish damages. Because I believe the evidence was legally insufficient to support
the jury s award of damages for Ramirez s future mental anguish, I respectfully dissent from this part of the Court s
ruling.
In conducting a legal sufficiency review of mental anguish damages, we have held that such damages are recoverable
if the plaintiff provides (1) direct evidence of the nature, duration, or severity of his anguish establishing a substantial
disruption in his daily routine, or (2) other evidence of a high degree of mental pain and distress that is more than mere
worry, anxiety, vexation, embarrassment, or anger. Saenz v. Fid. & Guar. Ins. Underwriters, 925 S.W.2d 607, 614
(Tex. 1996); Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995). Application of this standard to the evidence
presented does not always submit to a simple analysis. As the majority recognizes, we noted in Parkway that some
types of disturbing or shocking injuries have been found sufficient to support an inference that the injury was
accompanied by mental anguish. 901 S.W.2d at 445. In addition, damages for future mental anguish are recoverable
only if the plaintiff demonstrates a reasonable probability that past mental anguish will continue in the future. Fisher v.
Coastal Transp. Co., 230 S.W.2d 522, 524 25 (Tex. 1950).
Ramirez offered proof that he suffered a serious physical assault. West does not challenge the legal sufficiency of
proof of past mental anguish. I agree with West, however, that the proof was legally insufficient to support an award of
future mental anguish damages. The altercation in issue occurred on September 17, 2000, and the trial occurred more
than two years later, in Fall 2002.
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Focusing on the evidence of Ramirez s future mental anguish, Ramirez, when asked how the incident has affected him,
testified:
I am the kind of person that I don t talk to people about what s going on with me, not even to my wife. All these, I
have kept inside, and I have been having a lot of communication problems with my family. I don t know if this is
going to affect me in the future. This is what has happened, and I have a lot of anger inside of me for what happened,
for what they did to me.
Ramirez also testified that I have everything inside of me, that he did not want to talk to his wife about the incident,
that he was generally less communicative, and that he had taken an anger management course.
Ramirez s wife testified that Ramirez is less communicative with his daughter, and that
It s very hard for him to talk to people. And even us, when we whenever we talk or something like this comes up or
anything this issue comes up, he doesn t want to talk about it. He feels very bad that what happened to him. I could see
him I m with him all the time, and I could see that he can t sleep well. He s always tossing and turning. I know he has
nightmares. He doesn t tell me but I can see it.
She also testified that Ramirez became depressed and manifested various symptoms of this depression right after the
incident, including crying and being spaced out, and that he s still like that now, but probably not as much as he was . .
. . She testified that even now . . . I try not to push him because I can only imagine what he feels.
With regard to future mental anguish, this evidence does not in my view demonstrate a substantial disruption in
Ramirez s daily routine or show that Ramirez s ability to work, attend to his personal needs, or engage in other aspects
of daily living will be substantially impaired.
Nor does this evidence constitute proof of a high degree of future mental pain and distress amounting to more than
mere worry, anxiety, vexation, embarrassment, or anger. Ramirez s testimony that he continued to carry a lot of anger,
and that he does not want to talk about the incident, and his wife s testimony that he has nightmares, tosses and turns
at night, and has become less communicative, do not amount to a high degree of future mental pain and distress.
By comparison, in Saenz a plaintiff testified that the defendant s conduct had caused her to worry a lot about future
medical bills and to worry that she would lose her house. 925 S.W.2d at 614. While accepting that these concerns were
real and understandable, we held that they did not rise to the level of compensable past or future mental anguish. Id. In
Parkway, which involved a house being flooded multiple times due to faulty drainage, we did not question the
sincerity of a husband s testimony that he was very disturbed by the defendant s conduct, or his wife s testimony that
the husband would come home and he would become very quiet and that the defendant s conduct had caused friction
in the marriage and changed our life style. 901 S.W.2d at 445. We held, however, that this evidence did not rise to a
level of compensable mental anguish damages. Id.
Granted, those cases, unlike the present case, did not involve personal injury claims. But our decision in Fisher v.
Coastal Transport Co. did, and in that case we applied the long-established reasonable probability test and said future
mental anguish damages are recoverable only if the plaintiff shows that future ill effects are reasonably probable, not
merely possible. 230 S.W.2d at 524 25. Cf. Lubbock County v. Strube, 953 S.W.2d 847, 856 57 (Tex. App. Austin
1997, pet. denied) (a wrongful termination case holding that plaintiff was entitled to past but not future mental anguish
damages, where plaintiff suffered from depression and withdrew into a shell but failed to demonstrate that her past
mental anguish would continue in the future).
I in no way contest Ramirez s genuineness, and concede that definitions of mental anguish are inherently nebulous and
imprecise, requiring reviewing juries and courts to weigh shades and degrees of plaintiffs emotional reactions. But
Ramirez himself admits he does not know how or, more fundamentally, if the altercation will affect him in the future.
Fisher, 230 S.W.2d at 524 (noting that fairness and justice dictate that jurors are limited to the bounds of reasonable
probability and cannot wander at will in the realms of mere possibility ).
All in all, the descriptive evidence in the pending case is not qualitatively or quantitatively different from the evidence
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in Saenz and Parkway, and as Ramirez s own testimony suggests, does not establish a probable substantial disruption
in Ramirez s daily routine or show emotions beyond the realm of worry, anxiety, vexation, embarrassment, or anger
needed to support an award of future mental anguish damages.
Don R. Willett
Justice
Opinion delivered: June 30, 2006
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