Joanna Wei v. Lufkin Royale Nail Spa 75901, LLC D/B/A Royale Nail Spa

NO. 12-23-00309-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JOANNA WEI, § APPEAL FROM THE 159TH
APPELLANT

V. § JUDICIAL DISTRICT COURT

LUFKIN ROYALE NAIL SPA 75901,
LLC D/B/A ROYALE NAIL SPA, § ANGELINA COUNTY, TEXAS
APPELLEE
MEMORANDUM OPINION

Joanna Wei appeals the judgment rendered after a jury trial in her negligence suit against
Lufkin Royale Nail Spa 75901, LLC, d/b/a Royale Nail Spa. In a single issue, she challenges the
trial court’s denial of her motion for new trial. We affirm.

BACKGROUND

On May 6, 2019, Joanna answered an advertisement for a nail technician position at
Royale Nail Spa (Royale), located in Lufkin, Texas. 1 The owner of Royale, Xuan Hill, asked
Joanna to come in the next day so that Hill could evaluate her skills. As instructed, Joanna
arrived at Royale at approximately 8:45 a.m. the following morning. Hill was not present, but
Joanna spoke to her son, Robinson Nguyen, who instructed her to go to the back of the salon,
because Hill always arrived through the back door. Joanna began walking toward a table in a
break area, where she intended to wait for Hill; however, before reaching the table, she slipped in
a puddle of water on the floor and fell onto her backside. An employee of Royale assisted
Joanna in rising and helped her to a chair. Thereafter, Joanna informed Nguyen that she slipped

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Joanna Wei and Ming Wei (a witness in this matter) share a surname. For the sake of clarity, we refer to
them by first name herein.
in water on the floor. Nguyen asked her whether she could still work that day; she responded
that she could do manicures even though her leg hurt, because her hands were not injured. Hill
arrived at the salon about thirty minutes after Joanna’s fall and asked whether she could continue
to work, to which she gave the same response. Throughout the day, Joanna provided manicures
for approximately six customers but was unable to perform a pedicure because she could not sit
on a short stool.
Around 6:00 p.m., she informed Nguyen and Hill that she wanted to leave because of
increasing leg pain. When they asked whether she could return the next day, Joanna replied that
she was uncertain whether she would need to seek medical attention. Nguyen assisted Joanna in
walking to her car, while Hill carried Joanna’s bag of manicure tools. Joanna drove the fifty-five
minutes to her home using only her uninjured right leg, and went immediately to bed. During the
night, she awoke in severe pain and unable to move the injured leg, so she called a friend to take
her to the emergency room. Following an x-ray, hospital personnel informed Joanna that her hip
was broken and she would be transferred to a hospital in The Woodlands for necessary surgery.
On May 9, Dr. Jason Brannen, an orthopedic surgeon, performed the surgery to repair Joanna’s
hip. She remained in the hospital for one or two more days, after which hospital staff ensured
that she could walk with the aid of a walker before discharging her. She attended three physical
therapy sessions following the surgery, but stopped therapy because it caused pain.
Joanna filed suit against Royale for negligence related to the slip and fall incident. At the
jury trial, Joanna testified to her version of events as set forth above. Additionally, she stated
that her pain began improving seven or eight months post-surgery, but at the time of trial, she
still experienced pain and numbness in her hip.
Hill testified that she did not recall either speaking with Joanna about the nail technician
position or asking her to come to Royale for an interview. Instead, she went to the salon between
9:00 a.m. and 10:00 a.m. on the morning of May 7 because someone called and told her an
employee fell. When Hill arrived at Royale, she encountered Joanna standing upright in the
front of the salon. When Hill asked what happened and whether she was hurt, Joanna responded
that she fell near a hot towel steamer in the back of the salon. Hill subsequently left the salon but
returned to Royale around 5:30 or 6:00 p.m. the same day, at which time Joanna asked to leave
because of her pain. Hill denied that she or Nguyen helped Joanna to her car and denied having
any further contact with her.

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Nguyen testified that he arrived at Royale at approximately 8:50 a.m. on May 7, and
recalled only one customer waiting outside for an appointment at that time. He realized that the
salon did not have enough cash for the day and left for the bank at around 9:05 a.m. Nguyen did
not recall seeing or speaking to Joanna before leaving. While at the bank, he received a call from
Hill, informing him that someone fell in the salon. When Nguyen returned to Royale, Hill was
already present, and Joanna was seated in the employee break area. Nguyen asked multiple
times whether she required medical attention, and each time Joanna denied needing a doctor. He
then asked Joanna if she could still work, which she affirmed. Nguyen recalled that Joanna
performed three manicures that day, asked to leave around 5:00 p.m. because of pain, and
required assistance from himself and Hill to reach her car. Joanna returned to the salon before
noon the next day and informed Nguyen that her hip was broken and required surgery. Nguyen
had no contact with Joanna thereafter.
Dr. Brannen testified by video deposition that on May 8, he received and reviewed X-ray
images of Joanna’s left hip and diagnosed a femoral neck fracture. He recommended a “closed
reduction and percutaneous pinning with cannulated screws,” also known as “cannulated screw
fixation,” which he described as a procedure wherein screws are inserted into the femoral head to
stabilize the bone and permit healing. Dr. Brannen noted that in many cases of bone fractures, a
patient could feasibly refuse surgery, but the importance of the femoral neck in allowing
ambulation made surgery necessary in Joanna’s case. He additionally testified that a ground-
level fall could “definitely” cause this type of injury, and that such falls are the most common
cause of femoral neck fractures. Dr. Brannen affirmed that Joanna did not see him for any
follow-up appointments despite attempts by his office staff to contact her, which limited his
ability to provide any post-surgery prognosis. However, Joanna’s hospital medical records stated
that the day after surgery, she walked 150 feet with the aid of a walker.
Finally, Joanna’s ex-husband Ming Wei testified that he saw her approximately one week
after the surgery, at which time she was using a walker. He moved back into Joanna’s house to
provide help while she recovered but moved to California in the summer of 2022. He stated that
following her injury, she could not cook, clean, shop, or perform yard work, so he performed
those tasks. He further testified that Joanna’s pain prevented her from working in a nail salon,
sitting in a car for a long time, or sleeping well, and that these symptoms were unabated when he
moved out.

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The jury unanimously found that both Joanna and Royale were negligent, and each was
50% responsible for causing the incident. The jury awarded Joanna damages as follows: (1)
$832.00 for physical pain sustained in the past; (2) $0.00 for physical pain that, in reasonable
probability, she would sustain in the future; (3) $0.00 for mental anguish sustained in the past;
(4) $0.00 for mental anguish that, in reasonable probability, she would sustain in the future; (5)
$832.00 for physical impairment sustained in the past; (6) $0.00 for physical impairment that, in
reasonable probability, she would sustain in the future; (7) $0.00 for disfigurement sustained in
the past; (8) $0.00 for disfigurement that, in reasonable probability, she would sustain in the
future; and (9) $9,795.47 for medical care expenses incurred in the past.
Subsequently, the trial court signed a judgment reflecting the jury’s findings. Joanna
timely filed a motion for new trial, which was overruled by operation of law. This appeal
followed.

MOTION FOR NEW TRIAL

In her sole issue, Joanna contends that the trial court erred by denying her motion for new
trial because the jury’s answers to Jury Question 3, subparts one through eight, were against the
great weight and preponderance of the evidence.
Standard of Review

We review a trial court’s denial of a motion for new trial for abuse of discretion.
Ashworth v. Brzoska, 274 S.W.3d 324, 328 (Tex. App.–Houston [14th Dist.] 2008, no pet.). A
trial court abuses its discretion if it acts in an unreasonable or arbitrary manner or without
reference to any guiding rules and principles. See Cire v. Cummings, 134 S.W.3d 835, 838–39
(Tex. 2004). The substance of the attack levied by Joanna is one of factual sufficiency, which is
not an independent ground for reversal in the abuse of discretion analysis. See, e.g., Gonzales as
Next Friend of Gonzales v. 3 Atoms, LLC, No. 07-19-00437-CV, 2020 WL 1966290, at *3
(Tex. App.—Amarillo Apr. 23, 2020, no pet.) (mem. op.). Rather, it is a component of the
overall analysis. Id. That is, whether the evidence is factually sufficient influences whether the
trial court abused its discretion.
When a party attacks the factual sufficiency of an adverse finding for which she has the
burden of proof, she must demonstrate on appeal that the adverse finding is against the great
weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242

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(Tex. 2001) (per curiam). We may not substitute our own judgment for that of the trier of fact,
pass upon the credibility of the witnesses, or decide how much weight should be given to their
testimony. See Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998); City of Keller v.
Wilson, 168 S.W.3d 802, 819 (Tex. 2005). When presented with conflicting testimony, the jury
may believe one witness and disbelieve others, and it may resolve inconsistencies in the
testimony of a witness. City of Keller, 168 S.W.3d at 819-20; see also Golden Eagle Archery,
Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003); Hambrick v. Foremost Cnty. Mut. Ins., No.
12-23-00133-CV, 2024 WL 1661254, at *7 (Tex. App.—Tyler Apr. 17, 2024, no pet. h.) (not yet
released for publication). A jury may disbelieve a witness, even if the witness’s testimony is
uncontradicted. Grant v. Cruz, 406 S.W.3d 358, 364 (Tex. App.—Dallas 2013, no pet.).
Because none of the parties challenge the wording of the jury questions at issue or
accompanying instructions in this case, we will measure sufficiency of the evidence against the
questions as submitted. See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000); Texas First Nat’l
Bank v. Ng, 167 S.W.3d 842, 855–56 (Tex. App.—Houston [14th Dist.] 2005, pet. granted,
judgm’t vacated w.r.m.). As a general principle, we remain mindful that the amount of damages
awarded is uniquely within the jury’s discretion. Mo. Pac. RR Co. v. Roberson, 25 S.W.3d 251,
257 (Tex. App.—Beaumont 2000, no pet.).
The Texas Supreme Court sets out the factual sufficiency standard of review for cases
where a plaintiff challenges a damages award, or a portion thereof, as inadequate:

[W]hen only one category of damages is challenged on the basis that the award in that category
was zero or was too low, a court should consider only whether the evidence unique to that
category is so against the great weight and preponderance of the evidence as to be manifestly
unjust, shock the conscience, or clearly demonstrate bias. When … the jury’s failure to find
greater damages in more than one overlapping category is challenged, the court of appeals should
first determine if the evidence unique to each category is factually sufficient. If it is not, the court
of appeals should then consider all the overlapping evidence, together with the evidence unique to
each category, to determine if the total amount awarded in the overlapping categories is factually
sufficient.

Golden Eagle Archery, 116 S.W.3d at 775.

Past Physical Pain
No fixed rule exists for measuring damages for physical pain, mental anguish, or physical
impairment; each case must be measured by its own facts, and appellate courts give considerable

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discretion and latitude to the jury’s award. SunBridge Healthcare Corp. v. Penny, 160 S.W.3d
230, 247 (Tex. App.–Texarkana 2005, no pet.). “While physical injuries are often accompanied
by pain, anguish, and impairment, ‘the fact of an injury does not prove compensable pain and
suffering or impairment.’” Gainsco Cnty. Mut. Ins. Co. v. Martinez, 27 S.W.3d 97, 103 (Tex.
App.—San Antonio 2000, pet. granted, judgm’t vacated w.r.m.) (quoting Biggs v. GSC Enters.,
Inc., 8 S.W.3d 765, 769 (Tex. App.—Fort Worth 1999, no pet.)); accord In re State Farm Mut.
Auto. Ins. Co., 483 S.W.3d 249, 263 (Tex. App.—Fort Worth 2016, orig. proceeding). Further,
“a damage award for physical pain is not always mandated when medical expenses are
awarded.” Enright v. Goodman Distribution, Inc., 330 S.W.3d 392, 398 (Tex. App.—Houston
[14th Dist.] 2010, no pet.). The process of awarding damages for amorphous, discretionary
injuries such as pain and suffering in a personal injury case is inherently difficult because the
alleged injury is a subjective, unliquidated, non-pecuniary loss. Laquey v. Cox, No. 02-17-
00005-CV, 2017 WL 4413353, at *1 (Tex. App.—Fort Worth Oct. 5, 2017, no pet.) (mem. op.);
Dollison v. Hayes, 79 S.W.3d 246, 249 (Tex. App.—Texarkana 2002, no pet.). It is “particularly
within the province of the jury” to set the amount of damages for pain and suffering, and “the
jury has wide latitude in determining the amount of the award.” Laquey, 2017 WL 4413353 at
*1 (citing Lanier v. E. Found. Inc., 401 S.W.3d 445, 455 (Tex. App.–Dallas 2013, no pet.));
see also Tagle v. Galvan, 155 S.W.3d 510, 518 (Tex. App.—San Antonio 2004, no pet.).
Joanna contends that the jury’s award of $832.00 in compensation for her past physical
pain is “clearly inadequate” and against the great weight and preponderance of the evidence. 2
The jury charge defined “physical pain” as follows: “Physical pain means the loss of enjoyment
of life or the loss of the injured party’s former lifestyle.” The objective record evidence shows
that Joanna suffered an injury, namely a bone fracture, and underwent surgery to correct it. As is
typical in personal injury cases, the remaining evidence of Joanna’s physical pain primarily
consisted of her testimony, Ming’s testimony, and medical records reflecting information she
related to her care providers. Witness credibility is central to the claims of physical pain and, as
a result, the jury’s role in assessing damages in these categories is paramount. See Ononiwu v.

2
Despite Joanna’s argument to the contrary, a jury’s award for past medical expenses does not make
compulsory an accompanying award for physical pain. See Enright v. Goodman Distribution, Inc., 330 S.W.3d
392, 398, 400-02 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (record supported award of zero damages for
physical pain, even though jury awarded $15,199.00 for past medical expenses including surgery).

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Eisenbach, 624 S.W.3d 37, 46 (Tex. App.—Houston [1st Dist.] 2021, no pet.) (citing Diamond
Offshore Servs. Ltd. v. Williams, 542 S.W.3d 539, 552 (Tex. 2018)).
The parties do not dispute that Joanna refused medical attention after the fall and instead
continued to work at Royale for several hours before driving home. Joanna testified at trial that
she still experienced pain in her leg, particularly when sleeping. However, she was impeached
by her 2021 deposition testimony, wherein she stated that the only remaining pain or discomfort
in her left hip area was numbness caused by standing for too long. Although Joanna stated that
she was at home recovering for “many months,” could not bathe herself, and required a walker to
ambulate for more than a year, her physical therapy records indicate that she was walking
independently with a cane on June 13, 2019. Moreover, the record showed she never returned to
Dr. Brannen after her surgery and that her third physical therapy visit on June 28 (less than two
months after her injury) was the last time she sought medical treatment related to the slip and fall
incident. The jury could have chosen to disbelieve that Joanna experienced significant pain
based on her initial delay in seeking treatment and her subsequent discontinuance of such
treatment and determined the appropriate amount of compensation after considering these
factors. See, e.g., Davis v. Vaughters, No. 01-17-00612-CV, 2018 WL 5661317, at *8 (Tex.
App.—Houston [1st Dist.] Nov. 1, 2018, no pet.) (mem. op.); Gutierrez v. Martinez, No. 01-07-
00363-CV, 2008 WL 5392023, at *6 (Tex. App.—Houston [1st Dist.] Dec. 19, 2008, no pet.)
(mem. op.) (zero damages award for physical pain supported when plaintiff delayed seeking
treatment and discontinued treatment after three months). Accordingly, we cannot conclude that
the jury’s award of $832.00 for past physical pain is against the great weight and preponderance
of the evidence.
Future Physical Pain
“An award of future damages in a personal injury case is always speculative.” Stone v.
Christiansen, No. 02-22-00450-CV, 2023 WL 5766076, at *5 (Tex. App.—Fort Worth Sept. 7,
2023, no pet.) (mem. op.) (quoting Pipgras v. Hart, 832 S.W.2d 360, 365 (Tex. App.—Fort
Worth 1992, writ denied)). Thus, appellate courts are “particularly reluctant” to disturb a jury’s
findings concerning future damages categories. Pipgras, 832 S.W.2d at 365.
Because Joanna never returned to Dr. Brannen after her surgery, he could not opine on
the state of her recovery or give any future prognosis. And as aforementioned, Joanna sought no
further medical treatment after discontinuing physical therapy. Although both Joanna and Ming

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testified to her ongoing complaints of pain, the jury was permitted to disbelieve these witnesses,
and implicitly did so here. See Ononiwu, 624 S.W.3d at 46. In particular, the jury had some
reason to doubt Joanna’s attestations of ongoing pain at trial, as she stated in her deposition that
occasional numbness was the only lingering issue with her hip. It was the province of the finder
of fact to resolve the inconsistencies in Joanna’s testimony and determine which, if any, of her
statements were credible. See id.; Golden Eagle Archery, 116 S.W.3d at 775. In doing so, the
jury could reasonably decide from the evidence presented that Joanna had significantly recovered
by the time of trial such that she would not suffer compensable physical pain going forward.
Past and Future Mental Anguish
The trial court instructed the jury that “‘Mental anguish’ implies a relatively high degree
of mental pain and distress. It is more than mere disappointment, anger, resentment or
embarrassment, although it may include all of these. It includes a mental sensation of pain
resulting from such painful emotions as grief, severe disappointment, indignation, wounded
pride, shame, despair and/or public humiliation.”
“The mere fact of injury does not prove compensable pain and mental anguish.” Grant,
406 S.W.3d at 364. Generally, to support an award of mental anguish damages, the plaintiff’s
evidence must describe “the nature, duration, and severity of their mental anguish, thus
establishing a substantial disruption in the plaintiff[’s] daily routine.” See Fifth Club, Inc. v.
Ramirez, 196 S.W.3d 788, 797 (Tex. 2006) (quoting Parkway Co. v. Woodruff, 901 S.W.2d
434, 444 (Tex. 1995)). The Texas Supreme Court has held that “some types of disturbing or
shocking injuries have been found sufficient to support an inference that the injury was
accompanied by mental anguish.” Parkway, 901 S.W.2d at 445. But even when an occurrence is
of the type for which mental anguish damages are recoverable, evidence of the nature, duration,
and severity of the mental anguish is required. Hancock v. Variyam, 400 S.W.3d 59, 68 (Tex.
2013). The record must reflect more than the existence of “mere emotions” to support an award
of damages for mental anguish. Latham v. Castillo, 972 S.W.2d 66, 70 (Tex. 1998).
The record contains almost no evidence pertaining to any mental distress Joanna might
have suffered, let alone the high degree of distress described in the jury charge, and the evidence
present is both indirect and subjective. The available medical records do not indicate that Joanna
ever reported mental health symptoms to her care providers, and the vast majority of her (as well
as Ming’s) trial testimony focused on physical pain and impairment, rather than any impact the

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slip and fall incident may have had on Joanna’s emotional state. The jury was not required to
infer mental anguish from the existence of Joanna’s injury and could reasonably find that Joanna
did not suffer compensable mental anguish as a result of the incident. See Grant, 406 S.W.3d at
364. The record is similarly devoid of evidence regarding the probability that Joanna may suffer
mental anguish in the future and given the necessarily speculative nature of future damages
awards, we are reluctant to disturb the jury’s finding in this category of damages. See Pipgras,
832 S.W.2d at 365.
Past and Future Physical Impairment
In this case, the jury charge defined “physical impairment” as “the loss of enjoyment of
life or the loss of the injured party’s former lifestyle.” 3 “[L]oss of enjoyment of life fits best
among the factors a factfinder may consider in assessing damages for physical impairment.
Indeed, if other elements such as pain, suffering, mental anguish, and disfigurement are
submitted, there is little left for which to compensate under the category of physical impairment
other than loss of enjoyment of life.” Golden Eagle Archery, 116 S.W.3d at 772. The existence
of objective evidence of an injury does not require us to conclude that a jury’s failure to award
damages for physical impairment is against the great weight and preponderance of the evidence.
Id. at 774. A plaintiff generally must show that her physical impairment damages are substantial
and extend beyond any pain, suffering, mental anguish, lost wages, or diminished earning
capacity. Id.
Some record evidence supported a finding that Joanna’s lifestyle changed negatively after
her injury, namely her testimony that she could no longer wear high heeled shoes, walk to the
lake, run, shop, or perform her own yard work, and Ming’s testimony that he handled all of the
house and yard work for approximately three years following the incident. However, as
discussed supra, the record also contains conflicting evidence regarding the extent and length of
Joanna’s physical impairment, including the aforementioned inconsistencies about her use of
mobility aids. And in her 2021 deposition, Joanna testified that she could sometimes operate a
weed eater around her yard, although Ming still helped with the mowing. The jury was free to
resolve these conflicts, find Joanna and Ming’s testimony about her impairment not credible, and

3
We note that “loss of enjoyment of life” is also specified in the charge’s definition of physical pain, and
that the panel was instructed to “[c]onsider the elements of damages listed below and none other. Consider each
element separately. Do not award any sum of money on any element if you have otherwise, under some other
element, awarded a sum of money for the same loss. That is, do not compensate twice for the same loss, if any.”

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assign little weight thereto. See Ononiwu, 624 S.W.3d at 46. Similarly, the jury could
reasonably have found (and implicitly did find) that Joanna suffered only a small amount of the
type of “substantial effect beyond ordinary pain and suffering that is required to recover damages
for physical impairment.” See id.
At trial, Joanna presented essentially no evidence of the likelihood of future impairment.
As aforementioned, the evidence of past impairment was entirely subjective and contained
multiple conflicts. However, there was no dispute that Joanna sought only very minimal medical
treatment post-surgery, and no medical professional provided testimony regarding the probability
that any existing impairment would continue or any new impairment would arise in the future.
And on appeal, she does not attempt to direct us to specific evidence regarding future physical
impairment, instead stating that “[t]he jury was provided with uncontroverted objective evidence
of Joanna Wei’s injury”—the existence of which does not require an award of physical
impairment damages. See Golden Eagle Archery, 116 S.W.3d at 774. Under the circumstances
of this case, we decline to disturb the jury’s finding on past and future physical impairment.
Past and Future Disfigurement
The jury charge defined “disfigurement” as “that which impairs the appearance of a
person, or that which renders unsightly, misshapen or imperfect, or deforms in some manner.”
There is little record evidence pertaining specifically to disfigurement. Joanna claimed at trial
that her surgical scar prevented her from wearing a two-piece swimsuit but did not expressly
testify that she considered herself disfigured or deformed or that she was embarrassed by the
scar. Although the nature of the surgery may have prevented her from displaying the scar itself
at trial, the record contains no photos, videos, or detailed descriptions of the scar from which the
jury could have determined any “unsightly” quality. Joanna used her hands to demonstrate the
size of the scar during her testimony, but did not verbally quantify its size. Dr. Brannen testified
that he made a “one to two centimeter incision” to facilitate Joanna’s surgery, and closed the
incision with sutures and glue after placing the screws. However, because Joanna attended no
further appointments after surgery, Dr. Brannen could not opine on the extent of any permanent
scarring.
The mere presence of a surgical scar does not automatically constitute compensable
disfigurement. Wal-Mart Stores, Inc. v. Tinsley, 998 S.W.2d 664, 673 (Tex. App.—Texarkana
1999, pet. denied); Belford v. Walsh, No. 14-09-00825-CV, 2011 WL 3447482, at *8 (Tex.

10
App.—Houston [14th Dist.] Aug. 9, 2011, no pet.) (mem. op.). In Belford, the plaintiff testified
that surgical incisions on his back and neck left scars, but the jury awarded zero damages for
disfigurement. Belford, 2011 WL 3447482 at *9. In affirming the award, the appellate court
reasoned that Belford did not show the scars to the jury and did not testify to any emotional
impact; moreover, the documentary evidence did not depict or describe any surgical scars, and
no other witness testified as to their existence. Id. We note once more that in the absence of any
objective evidence, the jury was free to disbelieve Joanna’s testimony in this case about the
existence, size, and severity of the scar, and ultimately find that if the scar existed, she was not
disfigured thereby. Id. at *8 (jury has “considerable discretion” in determining whether a person
has been disfigured and determining the appropriate compensation).
Joanna also alleged that the injury altered her gait, but conflicting evidence was presented
at trial. Joanna testified that she now leans noticeably to the right while walking and felt
embarrassed when her friends told her she “walk[ed] crooked.” However, in her 2021
deposition, Joanna testified, “I can walk normally.” In light of this conflict, the jury had the
discretion to choose which version of the evidence to accept, and implicitly chose either to
accept the latter version, or find that any changes to Joanna’s gait were not disfiguring. See
McKnight v. Calvert, 539 S.W.3d 447, 460 (Tex. App.—Houston [1st Dist.] 2017, pet. denied).
Joanna further challenges the factual sufficiency of the evidence to support the jury’s
award of zero damages for future disfigurement. “The matter of future disfigurement is
necessarily speculative and there is no mathematical yard stick by which one can measure
damages for it.” Figueroa v. Davis, 318 S.W.3d 53, 64 (Tex. App.—Houston [1st Dist.] 2010,
no pet.) (citing Tri–State Motor Transit Co. v. Nicar, 765 S.W.2d 486, 494 (Tex. App.—
Houston [14th Dist.] 1989, no writ)). “Each case must be judged on its own facts and
considerable discretion must be vested in the jury.” Id.
At trial, Joanna presented no evidence that she was likely to endure any further scarring
or deformity in relation to the slip and fall incident. And although an award for future
disfigurement may be based on future embarrassment caused by the disfigurement rather than
additional or increased deformity, the jury was free to disbelieve Joanna’s testimony regarding
past embarrassment related to her scar and alleged change in gait, and refuse to infer that any
such embarrassment would persist into the future. See Hopkins Cty. Hosp. Dist. v. Allen, 760
S.W.2d 341, 344 (Tex. App.—Texarkana 1988, no writ); Gonzales, 2020 WL 1966290 at *4.

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Summation
On this record, we conclude that the jury’s damages findings for past physical pain and
past physical impairment, as well as its zero-damages findings for future physical pain, past and
future mental anguish, future physical impairment, and past and future disfigurement are not so
against the great weight and preponderance of the evidence as to be manifestly unjust. See
Ononiwu, 624 S.W.3d at 44. Furthermore, the jury’s findings do not shock the conscience or
clearly demonstrate bias. See Golden Eagle Archery, 116 S.W.3d at 775. Because the jury’s
findings were supported by factually sufficient evidence, we conclude that the trial court did not
abuse its discretion in denying Joanna’s motion for new trial. We overrule her sole issue.

DISPOSITION

Having overruled Joanna’s sole issue, we affirm the judgment of the trial court.

JAMES T. WORTHEN
Chief Justice

Opinion delivered May 31, 2024.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MAY 31, 2024

NO. 12-23-00309-CV

JOANNA WEI,
Appellant
V.
LUFKIN ROYALE NAIL SPA 75901, LLC D/B/A ROYALE NAIL SPA,
Appellee

Appeal from the 159th District Court
of Angelina County, Texas (Tr.Ct.No. CV-00741-21-01)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the Appellant, Joanna Wei, for which execution may issue, and that this decision be
certified to the court below for observance.

James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.