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Doctor v. Pardue9/15/2005
n their contention that their injuries were proximately caused by Pardue's negligent operation or use of an airplane because they failed to request a jury question on this issue, object to this omission from the charge, obtain written findings necessary to support a judgment of liability, and object to the trial court's take-nothing judgment on the grounds of legally or factually insufficient evidence. The Doctors, however, argued in a post-judgment motion that the evidence established, as a matter of law, that their injuries were caused by Pardue's acts or omissions arising from the operation or use of an airplane. Pardue emphasizes that this argument was made in the Doctors' "motion to disregard jury findings and for judgment nov" rather than in their motion for new trial or in their motion to modify, correct, or reform judgment.
The effect of a motion depends on the nature of the instrument, and we look to an instrument's substance rather than its form. Finley v. J.C. Pace Ltd., 4 S.W.3d 319, 320 (Tex. App.---Houston [1st Dist.] 1999, no pet.). The substance of a motion is not determined solely from its caption or introduction, but instead is gleaned from the body of the motion and the prayer for relief. Id. Furthermore, the supreme court has stated that "a timely filed post-judgment motion that seeks a substantive change in an existing judgment qualifies as a motion to modify under Rule 329b(g)." Lane Bank Equip. Co. v. Smith S. Equip. Co., 10 S.W.3d 308, 314 (Tex. 2000); see also Tex. R. Civ. P. 329b(g); Ramirez v. Williams Bros. Constr. Co., 870 S.W.2d 551, 552 (Tex. App.---Houston [1st Dist.] 1993, no writ); Brazos Elec. Power Coop., Inc. v. Callejo, 734 S.W.2d 126, 129 (Tex. App.---Dallas 1987, no writ).
Here, after the entry of the final judgment, which provided absolute immunity to Pardue, the Doctors contemporaneously filed multiple post-judgment motions, including a motion for new trial, a motion to modify, correct, or reform the judgment, and a motion to disregard jury findings and for judgment notwithstanding the verdict. In their argument that the evidence established, as a matter of law, that the Doctors' injuries were caused by Pardue's acts or omissions arising from the operation or use of an airplane, it is readily apparent that the Doctors were seeking a substantive change in the judgment. We thus conclude that appellants preserved this issue for our review.
Having held that the trial court erred in not applying section 84.004(c) of the Act and limiting the liability of Pardue to the extent that he possessed any applicable insurance coverage, we further hold that the trial court erred in rendering a take-nothing judgment in favor of Pardue.
We sustain appellants' sixth issue.
Damages
In their first issue, the Doctors argue that, because it is undisputed that Lad suffered catastrophic injuries that rendered him a quadriplegic, the jury's zero damage findings for intangible damages, including past and future physical impairment, past
and future mental anguish, and past and future disfigurement, are against the great weight and preponderance of the evidence. In their second issue, the Doctors argue that the jury's zero damage finding for past medical expenses is against the great weight and preponderance of the evidence because there was uncontroverted evidence of approximately $400,000 in past medical expenses. In their third issue, the Doctors argue that the jury's award of $2.5 million in damages for future medical expenses is against the great weight and preponderance of the evidence because EAA's and the Doctors' expert testimony established a range of $5.3 million to $8.1 million for future medical expens
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