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Henry v. Thompson3/13/2003
Vira M. Henry, appellant, appeals from a jury verdict awarding her $500.00 in actual damages and no punitive damages. In eight issues, appellant argues that the trial court erred in (1) not awarding taxable court costs to appellant; (2) striking part of appellant's first amended petition; (3) excluding evidence of appellant's medical records and costs; (4) excluding evidence of a physical altercation involving appellee; (5) admitting evidence of a letter written by appellee after the accident; (6) admitting evidence of appellee's net worth; (7) failing to grant a mistrial, or order a new trial; and (8) refusing to award prejudgment interest to appellant.
We modify the trial court's judgment to award $1,768.55 in court costs to appellant and, as modified, we affirm.
Facts
On September 13, 1997, as appellant was stopped, her car was struck from behind by a Ford Explorer. Appellee and another woman got out of the Explorer and asked appellant if she was all right. Appellant had a cut on her forehead. Appellee testified that, after appellant had told her that she was going to call the police, she told appellant that she was leaving to get her mother.
Appellee left and did not report the accident. Nearly three months later, Webster Police Detective Wilburn received a tip that appellee was the hit and run driver, and appellee thereafter confessed to being the driver of the Ford Explorer that was involved in the accident.
Appellant sued appellee for actual and punitive damages. Appellee stipulated liability, and a jury trial was held to determine damages. The jury returned a verdict awarding $500.00 in actual damages and no punitive damages. The trial court denied appellant's motion for new trial.
Award of Court Costs
In her first issue, appellant argues that the trial court erred in not awarding her taxable court costs. See Tex. R. Civ. P. 131. Appellee concedes that appellant, as the successful party, should have been awarded taxable court costs. Accordingly, we modify the judgment to award taxable court costs in the amount of $1,768.55 to appellant.
We sustain issue one.
Motion to Strike Appellant's First Amended Petition
In her second issue, appellant argues that the trial court erred in striking part of her first amended petition on the ground that it was not timely submitted. Appellant had attempted to allege violations of the penal code by appellee, but the trial court struck that part of the petition. The petition was filed seven days before trial, and appellee concedes that the petition was timely submitted, but argues that appellant was not harmed by the trial court's error.
Appellant did not need to allege violations of the penal code to establish the negligence or negligence per se of appellee because appellee had already stipulated that she was liable. Appellant complains that she was harmed because she was not able to mention the penal code during trial, and, thus, was precluded from using the alleged penal code violations to support an award of punitive damages.
In determining whether appellant was harmed by the error, we must decide if the error probably caused the rendition of an improper judgment. Tex. R. App. P. 44.1.
Parties may recover punitive damages if they show by clear and convincing evidence that the harm for which they seek damages resulted from (1) fraud; (2) malice; or (3) a wilful act or omission or gross neglect in a wrongful death action. Tex. Civ. Prac. & Rem. Code Ann. ยง 41.003(a) (Vernon 1997). If a party relies on another statute that establishes a cause of action and specifically provides for
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