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[W] Healthcare Centers of Texas3/7/2002
ff's daily routine, or a high degree of mental pain and distress." Saenz v. Fid. & Guar. Ins., 925 S.W.2d 607, 614 (Tex. 1996).
The standard of review for an excessive damages complaint is factual sufficiency of the evidence. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex. 1998). We employ the same test for determining excessive damages as for any factual sufficiency question. See Pope v. Moore, 711 S.W.2d 622, 624 (Tex. 1986). We review the evidence, keeping in mind it is the jury's role, not ours, to judge the credibility of the evidence, to assign the weight to be given to testimony, and to resolve inconsistencies within or conflicts among the witnesses' testimony. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
In this case, the trial judge reviewed the evidence in support of both actual and exemplary damages. As noted earlier, the judge found factually insufficient evidence to support the amount of the damages and ordered a remittitur. To sustain appellant's challenge to the trial judge's damage award, we would have to conclude the evidence supporting the finding is so weak as to indicate it is clearly wrong and unjust. See id. LaPorte argues that Mrs. Rigby's daily routine was not altered; therefore, she cannot recover mental anguish damages. Disruption in the plaintiff's daily routine is not the only element to be considered.
The jury was also entitled to consider whether the event caused Mrs. Rigby a high degree of mental pain and distress. The evidence shows that when Mrs. Rigby observed the attempted sexual assault on her mother, she was scared, angry, crying, shaking, and afraid "he might do it again." Mrs. Rigby and her son testified that Mrs. Rigby passes LaPorte every day and for several weeks after the assault, every time she passed LaPorte, Mrs. Rigby relived the assault and cried. Mrs. Rigby testified this event was the most traumatic event of her life.
She also testified she still has nightmares about the assault. With regard to Mrs. Underwood's mental pain and anguish, her daughter, son, grandson, and caretakers testified Mrs. Underwood's demeanor was dramatically changed after the assault. Because the evidence is sufficient to support the damages award as remitted, we overrule LaPorte's fourth issue.
Remittitur
Mrs. Rigby attempts to file a cross-point alleging the remittitur was improper. She contends the amount awarded in the original judgment prior to the remittitur should stand. Texas Rule of Appellate Procedure 46.2 allows the remitting party to contend that all or part of the remittitur should not have been required, but the remitting party must perfect an appeal to raise that point. TEX. R. APP. P. 46.2. Rule 26.1(d) of the Texas Rules of Appellate Procedure provides that if any party files a notice of appeal, another party may file a notice of appeal within the appealable period stated in Rule 26.1(a) or fourteen days after the first filed notice of appeal, whichever is later. TEX. R. APP. P. 26.1(a), (d). Judgment was signed in the trial court on January 31, 2000. LaPorte filed its notice of appeal on June 30, 2000.
Therefore, Mrs. Rigby's notice of appeal was due July 14, 2000. Mrs. Rigby filed a motion to extend time to file notice of appeal on August 31, 2000, which this court denied. Because we do not have a timely perfected appeal from Mrs. Rigby, we cannot consider her cross- point challenging the remittitur. Prior to submission of this appeal, LaPorte filed a motion to strike Mrs. Rigby's cross-point. That motion is granted.
Proximate Cause
In its fifth issue, LaPorte claims the evidence is legally and factually insufficient to support the jury's findi
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