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Perez v. Perez8/31/2005
mediately stop and accept responsibility for the rear-end collision. There is, however, no evidence that the injuries from the motor vehicle collision were exacerbated by the defendant's failure to stop and render aid. Although she testified " t would have been nice to know that they at least acknowledged their fault," there is no evidence that the distress experienced after the accident was attributable to the defendant's flight from the scene. She expended no more effort to bring the wrongdoer to justice than following him onto the highway, and he remained until the police arrived. In this case, only post-accident conduct could give rise to liability for punitive damages because only post-accident conduct was alleged to be malicious. A reasonable trier of fact could not form a firm belief that the defendant's conduct following the accident resulted in harm to the plaintiff. We hold the trial court did not err in ruling that the evidence would not support the jury's finding that the harm to Lacey Perez resulted from malice.
The plaintiff also contends the trial court utilized the incorrect legal standard in granting judgment notwithstanding the verdict. The judgment recites the plaintiff cannot recover exemplary damages because "there was insufficient evidence presented to support such an award." Accepted terminology when there is no evidence supporting a fact issue on which the proponent has the burden of proof is "legally insufficient evidence." William Powers, Jr. & Jack Ratliff, Another Look at "No Evidence" & "Insufficient Evidence," 69 Tex. L.R. 515, 517-18 (1991). The terminology "insufficient evidence" or "factually insufficient evidence" is used to describe a situation where there is some evidence but not enough to uphold the finding in favor of the party with the burden of proof. Id. at 518. Although the ruling did not specify whether the evidence was legally insufficient or factually insufficient, a motion for judgment notwithstanding the verdict may be granted only if there is no evidence to support the finding. It is apparent, therefore, that the trial court ruled the evidence was legally insufficient to support the verdict. Although the judgment is no model of clarity, the nomenclature employed by the trial court does not establish that the trial court employed the incorrect standard in ruling on the motion.
The trial court correctly concluded that no clear and convincing evidence supports a finding that Lacey Perez was harmed by the malice or grossly negligent conduct of Gustavo A. Perez. We overrule the appellant's issues and affirm the judgment.
AFFIRMED.
Submitted on July 14, 2005
Before McKeithen, C.J., Kreger and Horton, JJ.
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