Court of Appeals of Texas,

Houston (1st Dist.).

LONE STAR FORD, INC., Appellant,

v.

Jack H. WILSON, Appellee.

Jack H. Wilson, Appellant,

v.

Lone Star Ford, Inc., Appellee.

No. 01–00–01056–CV.

|

Feb. 28, 2002.

Panel consists of Justices COHEN, NUCHIA, and PRICE.⁵

OPINION

FRANK C. PRICE, Justice.

*1 In this wrongful termination suit, Lone Star Ford, Inc. (Lone Star) appeals from a judgment rendered in favor of former employee, Jack Wilson. The trial court based its judgment on the jury’s finding that Lone Star discharged Wilson in retaliation for filing a workers’ compensation claim in good faith.

We affirm in part and reverse and remand in part.

FACTUAL BACKGROUND

Lone Star, a car dealership, hired Wilson in January 1997 as a finance manager. In March 1997, Wilson was promoted to production manager. While in both positions, Wilson was supervised by Ken Hunt.

On March 26, 1997, Wilson slipped on a wet floor at the dealership. Wilson reported his fall to Hunt and to Janice Dillan, the employee designated to handle workers’ compensation matters for the dealership. Wilson filled out a work-related incident report signed by Hunt. Hunt also told Wilson to see a doctor. Dillan advised Wilson where he needed to go for medical treatment. Wilson went to see the designated doctor on the same day he was injured. The doctor prescribed some medication and released Wilson back to work with the restriction that he could not lift more than 10 pounds.

Wilson fell again on April 26, 1997, while going up the stairs at Lone Star. Although this fall was not as serious as the earlier fall, Wilson reported the fall to Hunt and Dillan. Wilson filled out another work-related incident report and was again sent by Dillan to see a designated doctor. Wilson was released back to work without any limitations the same day.

In June 1997, Wilson received an interim promotion to Hunt’s position as assistant director of finance while Hunt was on leave due to a non-work-related injury. Wilson remained in this position until the end of August 1997. Mark Keogh, director of finance and general sales manager, was Wilson’s supervisor while Wilson was in this position.

In August 1997, Wilson began experiencing more pain as a result of the March slip and fall injury. He felt frustrated because he was still having medical problems and did not feel the doctors to which Lone Star had referred him were helping him. Dillan assisted Wilson in filling out another work-related incident report on August 26, 1997, which stated as follows:

Employee states left arm and shoulder are still hurting and were hurt when he fell originally on 3/26/97. Employee also states that Dr. did not listen to his complaints about arm & shoulder and treated back only.

Lone Star again sent Wilson to a doctor on August 27, 1997. Lone Star also assisted Wilson in seeing two specialists for his injuries following the filing of the August 26, 1997 incident report.

When Hunt returned to work in August 1997, Keogh told Wilson that he was pleased with Wilson’s performance in Hunt’s absence and promoted Wilson to director of special finance. Lone Star’s special finance department operated to obtain financing for Lone Star’s customers who had impaired credit. Wilson was promoted to replace Scott Stone, who had been director of special finance since January 1997. Keogh did not fire Stone, but demoted him so that he would report to Wilson. Rather than accept a demotion, Stone quit. At the time Wilson took over the special finance department, it was doing very poorly. Keogh told Wilson that he was frustrated the department was not doing more deals. Lone Star’s competitors were doing approximately 100 special finance deals a month, while the most Lone Star had ever done during Stone’s tenure was about 50.

*2 After Wilson became director of special finance, the number of special finance deals initially increased in September 1997 to 55. However, from September through December, the number of deals steadily decreased. In December, only 23 special finance deals were completed.

On December 1, 1997, Marc Wagoner replaced Keogh as general sales manger and as Wilson’s supervisor. Wagoner had worked at Lone Star from 1994 until February 1997 in several positions. Wagoner left Lone Star in February to work for another dealership. He then returned to Lone Star in August and was offered the general sales manager position on December 1. When Wagoner began as general sales manager, the dealership was doing poorly. Not only was the special finance department not meeting its goal of a 100 special finance deals a month, the number of car sales was also down.

In November, Wilson went to see a doctor of his own choice who told him that he had nerve damage in his back. Because he knew Dillan would soon resign her position to move out of state, Wilson approached Dillan in late December and asked her for the telephone number of the workers’ compensation carrier. At the time, Wilson was very frustrated because he was not getting any relief from the pain he suffered as a result of his work-related injuries. Wilson complained to Dillan that the workers’ compensation doctors to which he was being sent were not listening to his complaints and were doing the same things repeatedly without any results. Wilson asked Dillan if he needed to retain an attorney to either sue Lone Star or the workers’ compensation carrier to get some results.

A few days after Wilson had this conversation with Dillan, he was terminated by Wagoner on January 2, 1998. Wagoner filled out an “Employee Separation” form and checked “Carelessness/Negligence,” “Insubordination/Misconduct,” and “Violation of Company Policy” as the reasons for Wilson’s termination.

PROCEDURAL HISTORY

Wilson sued Lone Star for wrongful discharge under section 451.001 of the labor code, which prohibits retaliation against workers who file workers’ compensation claims. See Tex. Lab.Code Ann. § 451.001 (Vernon 1996). The jury found that Lone Star discharged Jack Wilson because he filed a workers’ compensation claim in good faith and awarded Wilson $130,000 in lost wages and $250,000 in compensatory damages. The trial court signed a judgment awarding Wilson damages in accordance with the jury’s findings.

Lone Star filed several post-trial motions, including a motion for judgment notwithstanding the verdict, motion to disregard jury findings, motion for new trial, motion for remittitur, and motion to reform judgment. Following a hearing, the trial court denied all of Lone Star’s post-trial motions, but later signed an amended judgment reducing the amount of the lost wages award to $73,186 and the amount of compensatory damages to $150,000. The amended judgment also awarded Wilson pre- and post-judgment interest.

*3 In five issues, Lone Star complains: (1) the evidence was legally and factually insufficient to support the jury’s finding that Lone Star discharged Wilson because he filed a workers’ compensation claim; (2) the evidence was legally and factually insufficient to support the award of lost wage or compensatory damages; and (3) the trial court failed to properly modify the amended judgment to reflect that post-judgment interest would accrue from the date of judgment and not earlier.

Wilson also appeals from the trial court’s amended judgment. In one cross-point, Wilson contends the trial court erred in reducing the amount of lost wage and compensatory damages awarded by the jury.

DISCUSSION

A. Sufficiency of the Evidence

1. Standard of Review

When, as here, the party without the burden of proof challenges the legal sufficiency of the evidence, we will sustain the challenge only if, considering the evidence and inferences in the light most favorable to the finding, there is not more than a scintilla of evidence supporting it. See Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995). If there is more than a scintilla of evidence to support the finding, then the no-evidence challenge fails. See Herbert v. Greater Gulf Coast Enters., Inc., 915 S.W.2d 866, 871 (Tex.App.-Houston [1st Dist.] 1995, no writ). When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence. See Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983); Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 755 (Tex.1970). However, if the evidence supplies some reasonable basis for differing conclusions by reasonable minds as to the existence of a vital fact, then there is some evidence. See Kindred, 650 S.W.2d at 63.

We will sustain a factual sufficiency challenge only if, after viewing all the evidence, the evidence is so weak or the verdict so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

Also, as we examine the evidence, we remain mindful that the jury is the sole judge of a witness’s credibility and the weight to be given the testimony. Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 549 (Tex.1962). The jury may believe one witness and disbelieve another and resolve inconsistencies in any testimony. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986). This Court cannot substitute its opinion for that of the trier of fact and determine that it would have reached a different conclusion. Hollander v. Capon, 853 S.W.2d 723, 726 (Tex.App.-Houston [1st Dist.] 1993, writ denied).

2. Liability Finding

In its first two issues, Lone Star complains the evidence was legally and factually insufficient to support the jury’s finding that Lone Star discharged Wilson because he filed a worker’s compensation claim. Question No. 1 in the charge inquired:

*4 Did Lone Star Ford discharge Jack H. Wilson because he filed a workers’ compensation claim in good faith?

The accompanying instruction read as follows:

You are advised that an employer may not discharge or in any other manner discriminate against an employee because the employee has filed a workers’ compensation claim in good faith; has hired a lawyer to represent the employee in a claim; or has instituted or has caused to be instituted in good faith a proceeding under the Texas Workers’ Compensation Act.

Jack Wilson does not have to prove that the filing of his workers’ compensation claim was the only reason Lone Star decided to terminate him. However, he must prove that it was a determinative factor in Lone Star’s decision to terminate him. To establish that the filing of his worker’s compensation charge was a determinative factor in Lone Star’s decision to terminate him, Jack Wilson must prove that “but for” the filing of his charge he would not have been terminated. The burden of proof to establish retaliation is on Jack Wilson and not on Lone Star Ford.

You are instructed that Lone Star Ford could discharge Wilson at any time with or without cause so long as it was not in retaliation for filing a workers’ compensation claim. The issue before you is not whether Lone Star Ford’s decision was a fair or wise one; the only question you are to consider is whether Lone Star Ford terminated Wilson because he filed a workers’ compensation claim.

The jury answered in the affirmative.

As the jury was instructed, Wilson bore the burden at trial to establish Lone Star discharged him because he had, in good faith, filed a workers’ compensation claim. Tex. Lab.Code Ann. § 451.002(c) (Vernon 1996). No dispute arises in this case whether Wilson filed a workers’ compensation claim in good faith, and no question exists about whether he was terminated. The critical dispute involves causation. To prevail on his retaliatory discharge claim, Wilson was required to establish a causal link between the compensation claim and his termination. See McIntyre v. Lockheed Corp., 970 S.W2.d 695, 697 (Tex.App.-Fort Worth 1998, no pet.); Trevino v. Corrections Corp. of America, 850 S.W.2d 806, 808 (Tex.App.-El Paso 1993, writ denied). A causal link may be proven by circumstantial evidence. See Paragon Hotel Corp. v. Ramirez, 783 S.W.2d 654, 658 (Tex.App.-El Paso 1991, writ denied).

The jury was also correctly instructed that Wilson was not required to prove the compensation claim was the sole cause of Wilson’s termination. Rather, as stated by the Texas Supreme Court, the standard of causation for an anti-retaliation case under labor code section 451.001 is as follows: “[T]he employee’s protected conduct must be such that, without it, the employer’s prohibited conduct would not have occurred when it did.” Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996) (quoting the test from Tex. Dep’t of Human Servs. v. Hinds, 904 S.W.2d 629, 636 (Tex.1995)).

*5 In Cazarez, the supreme court also set forth the standard that had been applied below by the appeals court in that case to test for a causal link between a workers’ compensation claim and an employee’s discharge. The court of appeals had stated circumstantial evidence sufficient to establish a causal link can include:

• knowledge of the compensation claim by those making the decision on termination;

• expression of a negative attitude toward the employee’s injured condition;

• failure to adhere to established company policies;

• discriminatory treatment in comparison to similarly situated employees; and

• evidence that the employer’s stated reason for the discharge was false.

See id. at 451.

The Cazarez court did not expressly approve or disapprove the court of appeals’s five-factor test. The Texas Supreme Court did, however, rely heavily on this type of evidence in upholding the appeals court. Id. Moreover, other appeals courts addressing the issue have included this type of circumstantial evidence in conducting a sufficiency of the evidence analysis. See, e.g., Southwestern Bell Tel. Co. v. Garza, 58 S.W.3d 214, 228 (Tex.App.-Corpus Christi 2001, pet. filed); Dallas Area Rapid Transit v.. Johnson, 50 S.W.3d 738, 741 (Tex.App.-Dallas 2001, no pet.); Metal Indus. Inc. of Calif. v. Farley, 33 S.W.3d 83, 86 (Tex.App.-Texarkana 2000, no pet.); Wyler Indus. Works, Inc. v. Garcia, 999 S.W.2d 494, 501 (Tex.App.-El Paso 1999, no pet.). As such, and because it is pertinent to the facts of this case, we utilize these factors in our analysis.¹

a. Knowledge of the compensation claim by those making the termination decision

Wagoner testified that, at the time he terminated Wilson, he was unaware Wilson had filed a workers’ compensation claim or had been injured. Wilson also admitted he had not discussed his injuries or claims with Wagoner.

To support his claim of ignorance of Wilson’s injuries or workers’ compensation claim, Wagoner points out that he was not working at Lone Star when Wilson was injured in March and April, 1997. Evidence was also introduced that, prior to Wagoner’s promotion as Wilson’s manager on December 1, 1997, Wagoner and Wilson worked in separate buildings and had little interaction with one another.

Through Roger Elswick, Lone Star’s general manager and former comptroller, Wilson’s attorney introduced one of Lone Star’s interrogatory answers that identified Wagoner, and other Lone Star employees, as persons who had knowledge of the circumstances of Wilson’s injuries and medical condition prior to his termination, “as well as” knowledge of the factors affecting Wilson’s job performance that led to his termination.

On two separate occasions at trial, Wilson’s attorney read both the interrogatory and Lone Star’s answer, and then asked Elswick to confirm the correctness of what had been read. Elswick confirmed that Wilson’s attorney had correctly read the interrogatory and answer, but stated the answer was incorrectly worded. Elswick explained, that while some of the persons identified in the answer had knowledge of Wilson’s injuries, Wagoner only had knowledge related to Wilson’s job performance. Elswick also confirmed he was the corporate representative who answered and verified the interrogatory answers.²

*6 Lone Star also contends that Wagoner’s purported knowledge about Wilson’s injuries and medical condition constitute no evidence that Wagoner had knowledge that Wilson filed a workers’ compensation claim. However, as stated above, the jury was instructed, in part, as follows:

[A]n employer may not discharge or in any other manner discriminate against an employee because the employee has filed a workers’ compensation claim in good faith; has hired a lawyer to represent the employee in a claim; or has instituted or has caused to be instituted in good faith a proceeding under the Texas Workers’ Compensation Act.

Texas courts have held that it is not necessary for a worker to have actually filed a workers’ compensation claim to invoke the statutory protection; he needs only to take steps toward instituting a compensation proceeding to be protected. See Housing Auth. of the City of El Paso v. Guerra, 963 S.W.2d 946, 950 (Tex.App.-El Paso 1998, pet denied); Stephens v. Delhi Gas Pipeline Corp., 924 S.W.2d 765, 771 (Tex.App.-Texarkana 1996, writ denied). The act of informing one’s employer of an on-the-job injury sufficiently “institutes” a compensation proceeding within the meaning of the law. Stephens, 924 S.W.2d at 772 (citing Palmer v. Miller Brewing Co., 852 S.W.2d 57, 61 (Tex.App.-Fort Worth 1993, writ denied)). Based on the reasoning of these cases and the language of the jury charge, Wagoner’s knowledge of Wilson’s injuries constitutes some evidence from which a jury could infer that Wagoner discharged Wilson for filing a workers’ compensation claim, i.e., instituting a workers’ compensation proceeding.

In addition, Elswick acknowledged he had been aware of Wilson’s injuries but denied involvement in Wilson’s termination. However, Wilson’s attorney read an interrogatory answer, verified by Elswick, which stated, “the decision to terminate [Wilson] was made by Mark Wagoner, Lone Star General Sales manager after consultations with Roger Elswick….”

It is undisputed that Wilson filed a workers’ compensation claim for his injuries. Elswick testified he was involved in the handling of workers’ compensation claims for Lone Star. He denied speaking to Dillan about Wilson’s claims, but admitted he reviewed and initialed the completed workers’ compensation forms once a month. From this evidence, the jury could have reasonably inferred that Elswick was aware that Wilson had filed a workers’ compensation claim and participated in Wilson’s termination.³

b. Expression of a negative attitude toward the employee’s injured condition

No evidence was introduced that anyone at Lone Star expressed a negative attitude towards Wilson’s workers’ compensation claims. To the contrary, evidence was introduced showing that Lone Star employees assisted Wilson in filing his claims and in receiving medical treatment.

c. Failure to adhere to established company policies

Wilson introduced no evidence showing Lone Star failed to follow established company policies relating to his termination.

d. Discriminatory treatment in comparison to similarly situated employees

*7 Evidence was presented relevant to this factor. Specifically, the evidence showed that, while Scott Stone, Wilson’s predecessor was demoted because the special finance department was performing poorly, i.e., completing an inadequate number of deals, Wilson was terminated for this same reason.

Lone Star contends that Wilson and Stone were not “similarly situated” because the special finance department performed more poorly under Wilson than it had under Stone. Lone Star points out that the lowest number of special finance deals completed under Stone’s tenure was 31 in May 1997, while the lowest number under Wilson’s watch was 23 in December. However, the evidence showed that there was an objectively identifiable basis for comparison between Wilson and Stone. Both held the position of director of special financing, were subject to the same expectations of performance, had failed to meet Lone Star’s expectations regarding the number of special finance deals completed, and had each suffered an adverse employment action by Lone Star. From this evidence, the jury could reasonably infer that Stone and Wilson were “similarly situated” employees.

e. Evidence that the employer’s stated reason for the discharge was false

Lone Star presented evidence at trial that Wilson was not terminated because he had filed workers’ compensation claims, but because the special finance department continued to perform poorly after Wilson became special finance manager. Specifically, Lone Star presented evidence that the number of special finance deals being completed by the department continued to decline during Wilson’s tenure while the number of “in-transit contracts,” i.e., contracts for which there was a willing buyer, but for which the special finance department had not yet obtained financing, were increasing. Wagoner testified that he discussed these problems with Wilson on a daily basis, but Wilson failed to take any action to address them. Wilson denied that Wagoner had ever approached him to discuss these issues.

Keogh also testified that the quality of Wilson’s work deteriorated from September to November 1997. He stated Wilson’s performance, as special finance director, was “not acceptable.” However, other than the concerns that Wagoner claimed to have verbally expressed to Wilson in December 1997, the evidence showed that Wilson never received any written or verbal reprimands or counseling regarding his job performance before his termination.

On the “Employee Separation” form, Wagoner checked “Carelessness/Negligence,” “Insubordination/Misconduct,” and “Violation of Company Policy” as the reasons for Wilson’s termination. On cross-examination, however, Wagoner admitted that two of these three stated reasons were not correct. Specifically, Wagoner conceded that “insubordination” may have been a wrong choice and admitted Wilson had not been insubordinate. Rather, Wagoner stated Wilson had been “unresponsive,” which at the time, he viewed as being insubordinate.

*8 In addition, when asked, Wagoner could not articulate how Wilson had violated company policy. Wagoner stated, “Well I really don’t know whether he committed, you know violated company policy or not. I know that the department that he was running was run very poorly and performing extremely poorly.” He then conceded “maybe I made a mistake” with regard to that choice. Wagoner explained he had made the choices on the separation form because “those were the choices that I had to check on this and that’s what I checked.”

Relevant to Wilson’s alleged “negligence/carelessness,” is Wagner’s and Keogh’s testimony that, while under Wilson’s supervision, the special finance department failed to provide prospective lenders with all the necessary credit information for Lone Star’s customers seeking special financing. Lone Star alleged this resulted in delayed or no financing for these customers and led to a decline in the number of special finance deals completed.

Wilson presented evidence suggesting that the delay and failure to complete special financing deals were attributable to the financial difficulties of BMAC, one of the lenders with which Lone Star dealt. However, Lone Star points out that the evidence showed BMAC was only one of 12 to 15 lenders Lone Star used for special financing.

The employee separation form states, “The ‘reason’ for separation should be the specific reason given at the time of separation. All other comments, unrelated or prior differences, should be stated on the back or provided separately.” (Emphasis in original.) The form also had a blank space for the employer to “[d]escribe the final incident.”

Wilson testified the only explanation Wagoner gave him, at the time of his termination, was “irreconcilable differences.” Wagoner did not tell Wilson that he had been insubordinate, violated company policies, or had been careless or negligent. Other than checking the three reasons discussed above, Wagoner failed to provide any explanation or additional reasons for Wilson’s termination on the form, even though Wagoner testified he did not believe these choices accurately reflected the reasons he terminated Wilson.

According to Wilson, Wagoner never gave him a copy of the employee separation form. Wilson testified he was “shocked” when Wagoner terminated him.

Wilson offered other controverting evidence relevant to the reasons given for his termination. Wagoner testified the amount of outstanding, unfunded contracts reached a record high of $600,000 during Wilson’s tenure. However, Wilson disputed this figure and testified that while this was the outstanding amount in October and November, that figure had been reduced to under $100,000 by the time of his termination. Wilson felt that he was “getting things to go in the right direction as far as getting the company’s money….”

Wilson also offered evidence to demonstrate that the number of special finance deals progressively decreased during his tenure because the overall number of cars sold by the dealership had decreased. In September 1997, the dealership sold 148 used cars. During that month, Wilson’s department completed 55 special finance deals. In October, Lone Star sold 143 used cars. Forty-nine special financing deals were completed in October. In November, the number cars sold decreased to 101, while the number of special finance deals decreased to 39. Lastly, in December, Lone Star sold 62 used cars, and the special finance department completed only 23 deals. Wilson suggested that, while the number of used car sales went down during this period, the percentage of cars sold which received special financing remained fairly constant at about 37 or 38 percent during his tenure as director of special financing. Lone Star elicited testimony that not all special financing deals were for used cars; some new cars also received special financing. For example, in December 1997, 11 of the 23 special finance deals were for new cars and 12 were for used cars. However, Wilson testified that, overall, 90 percent of the special finance deals were for used cars and that December 1997 was an “unusual month.”

f. Timing of termination

*9 Lone Star also contends that the timing of the termination, if it occurs shortly after the employee has filed a claim, can also constitute evidence of unlawful retaliatory discharge. See Martin v. Tex. Dental Plans, Inc., 948 S.W.2d 799, 802 (Tex.App.-San Antonio 1997, writ denied) (finding six-day lapse was evidence of retaliatory discharge). Here, the evidence showed that Wilson was terminated eight months after his last injury. However, evidence was also presented that Wilson continued to seek medical treatment for his injuries until December 1997. Moreover, Wilson testified he was terminated only a few days after asking Dillan if he needed to retain an attorney and sue Lone Star or the workers’ compensation carrier. Such evidence is probative in light of the jury instruction that “an employer may not discharge or in any other manner discriminate against an employee because the employee … has hired a lawyer to represent the employee in a claim….”

After hearing all of the testimony and weighing the credibility of the witnesses, the jury determined that Lone Star terminated Wilson because he filed a workers’ compensation claim in good faith. We cannot substitute our conclusions for those of the jury, and we cannot interfere with the jury’s resolution of conflicts in the evidence or pass on the weight or credibility of the witnesses’ testimony. While there was certainly evidence to support Lone Star’s claim that it terminated Wilson because of substandard job performance, there was also evidence to support Wilson’s contention that “but for” the filing of his workers’ compensation claim, he would not have been terminated. Applying the appropriate standards of review, we conclude that there is both legally and factually sufficient evidence to support the jury’s finding that Wilson was terminated because he filed a workers’ compensation claim. Accordingly, we overrule Lone Star’s issues one and two.

3. Damage Issues

In issue three, Lone Star contends the evidence was legally and factually insufficient to support the trial court’s award of $73,186 in lost wage damages because it was predicated on the legally and factually insufficient finding that Wilson was terminated because he filed a workers’ compensation claim. Because we have concluded legally and factually sufficient evidence existed to support the liability finding, Lone Star’s argument on this point also fails.

We overrule Lone Star’s issue three.

a. Trial Court’s Award of Damages

Before we begin our discussion of the remaining issues, we first revisit, in more detail, the somewhat perplexing procedural background related to the award of damages by the trial court.

On March 23, 2000, the trial court signed a judgment awarding Wilson a judgment on the jury’s verdict, i.e., $130,000 for lost wages and $250,000 for compensatory damages. The judgment also awarded pre- and post-judgment interest at a rate of 10 percent per annum, but failed to award a sum certain of pre-judgment interest or a date from which post-judgment interest would accrue.

*10 Lone Star filed a motion for judgment notwithstanding the verdict and to disregard jury findings. In that motion, Lone Star asserted legally insufficient evidence existed to support the award of $130,000 in lost wage damages because no evidence existed to support the jury’s liability finding. Lone Star further asserted that legally insufficient evidence existed to support the jury’s award of compensatory damages.

In addition, Lone Star filed a motion for new trial, motion for remittitur, and motion to modify, correct, or reform judgment. Lone Star contended the evidence was factually insufficient to support the jury’s award of $250,000 and requested the trial court to remit the damages to reflect an amount supported by the evidence. Lone Star also contended the evidence was factually insufficient to support the $130,000 award of lost wages because the jury had improperly based the damage award, in part, on a period of time that Wilson was physically unable to work. Lone Star argued that, after discounting that period of time, the correct damage award for lost wages should have been $73,186 and requested the trial court to remit damages in that amount.

The trial court conducted a hearing on these motions on May 10, 2000; however, no transcript from the hearing is contained in the record. The trial court signed one order denying Lone Star’s motion for judgment notwithstanding the verdict and to disregard jury findings, and another order denying Lone Star’s motions for new trial, remittitur, and to modify, correct, or reform judgment.

Then, without any other motions being filed, and without any explanation in the record, the trial court signed an amended judgment on June 5, 2000, which reduced the award of lost wage damages from $130,000 to $73,186 and the award of compensatory damages from $250,000 to $150,000.

b. Reduction of Damages

In a single cross-point issue, Wilson complains that the trial court erred in reducing the damage award from $130,000 to $73,186 for lost wage damages, and from $250,000 to $150,000 for compensatory damages.

When a trial court (or an appellate court) finds that there is no evidence to support an award of actual damages, it should enter a take-nothing judgment for that amount without suggesting a remittitur. Larson v. Cactus Util. Co., 730 S.W.2d 640, 641 (Tex.1987). Should the court find, however, that the evidence is factually insufficient, it should “suggest a remittitur of that part of the verdict.” Id. (emphasis added). The trial court may deny the defendant’s motion for new trial on the condition that the plaintiff remit the suggested amount. Galveston County Fair & Rodeo, Inc. v. Glover, 880 S.W.2d 112, 122 (Tex.App.-Texarkana 1994, writ denied). A trial court may not order a remittitur; a remittitur may only be suggested, not compelled. Id.; Highlands Ins. Co. v. Baugh, 605 S.W.2d 314, 319 (Tex.Civ.App.-Eastland 1980, no writ); see also Benavidez v. Isles Constr. Co., 716 S.W.2d 588, 589 (Tex.App.-Corpus Christi 1986), rev’d on other grounds, 726 S.W.2d 23 (Tex.1987).

*11 In this case, the trial court ordered a reduction of damages and did not condition such on the overruling of a motion for new trial. The effect of its action is that of overturning the jury’s verdict and is not a remittitur. Glover, 880 S.W.2d at 122; Benavidez, 716 S.W.2d at 589. The trial court’s ruling is tantamount to granting a judgment notwithstanding the verdict or to disregarding jury answers and, as such, should be upheld on appeal only if there was no evidence to support the jury’s finding. Glover, 880 S.W.2d at 122; Benavidez, 716 S.W.2d at 590.

c. Lost Wages

With regard to awarding lost wages, the jury was instructed:

You should exclude any amount of money that Jack Wilson did earn between the time of his discharge and the present. You are instructed that Jack Wilson is not entitled to lost wages for any period of time during which he was physically or mentally unable to work.

Wilson claimed lost wage damages from the time of his termination on January 2, 1998, until he commenced full-time employment in another position on October 4, 1999. The evidence showed, during this 21–month period, Wilson was physically unable to work for a period of nine months.

Wilson testified that he made $85,122 a year while working for Lone Star. Wilson claimed, had he remained employed at Lone Star until October 4, 1999, he would have earned $159,173 during the 21–month period. Because he earned income from other sources during this time period, ($10,520 from other employers, $7,250 in unemployment benefits, and approximately $15,000 in workers’ compensation benefits) he deducted these amounts from his lost wage claim and asked the jury for $127,551. Wilson’s lost wage calculation did not, however, deduct the amount of wages for the nine-month period he was physically unable to work. Consistent with Wilson’s damage calculation, the jury awarded Wilson $130,000 for lost wages.

Lone Star contends no evidence exists to support the jury’s award because Wilson’s calculation fails to take into account the nine-month period he was physically unable to work. We agree.

The charge clearly instructed the jury to consider neither money earned by Wilson during this period nor wages for any period when Wilson was physically unable to work. Because no objection was made to this instruction, we are bound to review the evidence in light of this instruction. See City of Fort Worth v. Zimlich, 29 S.W.3d 62, 71 (Tex.2000); see also Lozano v. Lozano, 52 S.W.3d 141, 145 (Tex.2001) (Phillips, C.J., concurring and dissenting). In light of the jury instruction, the jury could not consider any evidence of lost wages for the nine-month period of time during which Wilson was physically unable to work. A review of the record reveals that, unless this amount is taken into consideration, no other evidence exists in the record to support the jury’s award of $130,000 in damages. Accordingly, the trial court properly reduced the jury’s lost wage damage award.⁴

*12 We overrule Wilson’s cross-point to the extent it challenges the trial court’s reduction of damages awarded for lost wages.

d. Compensatory Damages

In his cross-point, Wilson also challenges the trial court’s reduction of the compensatory damages awarded by the jury from $250,000 to $150,000. In its fourth issue, Lone Star complains that, even though the trial court reduced the amount, the evidence is still legally and factually insufficient to support the $150,000 award of compensatory damages given to Wilson by the trial court. Because these issues are interrelated, we consider them together.

With regard to compensatory damages, the jury was instructed as follows:

You are instructed that compensatory damages is an amount for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses.

You are instructed that mental anguish is a relatively high degree of mental pain and distress. It is more than more worry, anxiety, vexation, embarrassment or anger. Proof of mental anguish typically requires corroborating evidence of medical or psychological treatment.

In their briefing, the parties focus on whether the evidence supported the jury’s award based on mental anguish damages. To support an award of mental anguish damages, a plaintiff must either present “direct evidence of the nature, duration, and severity of their mental anguish, thus establishing a substantial disruption in the plaintiff’s daily routine,” or “evidence of ‘a high degree of mental pain and distress’ that is ‘more than mere worry, anxiety, vexation, embarrassment, or anger.’ “ Latham v. Castillo, 972 S.W.2d 66, 70 (Tex.1998). Mental anguish is defined as a high degree of mental suffering, beyond disappointment, anger, resentment, or embarrassment, although it may include all of these. Phar Mor, Inc. v. Chavira, 853 S.W.2d 710, 712 (Tex.App.-Houston [1st Dist.] 1993, writ denied). The proof must show such painful emotions as grief, severe disappointment, indignation, wounded pride, shame, despair, or public humiliation. Id. Jurors are best suited to determine whether, and to what extent, a defendant’s conduct caused compensable mental anguish by referring to their own experience. Star Houston, Inc. v. Shevack, 886 S.W.2d 414, 418–19 (Tex.App.-Houston [1st Dist.] 1994, writ denied). There must also be evidence that the amount of mental anguish damages awarded is fair and reasonable, and the appellate court must perform a “meaningful evidentiary review” of the amount found. Saenz v. Fid. Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex.1996).

Wilson offered the following testimony, which is relevant to his claim for mental anguish damages:

Q: Other than the loss of income, which the loss of your job caused you, have you sustained any other intangible losses such as loss of convenience for instance?

A: Well I—you know, there’s a lot of things. You know the mental anguish, the frustration, the sleepless nights, worried about paying your bills, not being able to pay your bills. I had to sell my house and move in with my stepdaughter because I was afraid that I couldn’t pay all my bills.

*13 ….

Q: Did you come to a point where you couldn’t make payments on your house anymore?

A: No, sir, but it wasn’t far from it, wasn’t far from there.

Q: How did—you mention mental anguish. How did that manifest itself?

A: Well you know, gives you self doubt. You become embarrassed about not being able to get a job or being fired from your last job or people ask you why and you don’t know why really. And so it puts a lot of self doubt in a person and a lot of frustration and a lot of anguish….

Q: Did you go through any periods of depression?

A: Yeah. There was periods of depression where I, you know didn’t want to get up. You know just stay in bed what have you, but I’m really not that type of person, so it’s just something you have to overcome.

Q: How long did these feelings, these manifestations last?

A: Some of them still last today with the self doubt but I would say about six months.

Q: When you say self doubt, you mean like lost [sic] of confidence?

A: Yeah, loss of confidence.

Q: Why would the loss of your job cause you the loss of confidence?

A: Well you feel like you’re doing a good job, you’re working as hard as you can to do a good job, nobody’s coming and telling you you’re not doing a good job and then all of a sudden you get terminated for whatever reason.

Wilson also testified that he had worked in the car dealership industry for many years before his termination, but, after he was fired, he “had to start all over in a different industry.”

Lone Star did not cross-examine Wilson with regard to his testimony about his mental anguish claim and offered no evidence to controvert the evidence Wilson presented.

In Parkway v. Woodruff, the supreme court held that a plaintiff who testified she was “hot” and that the flooding of her house was “upsetting” and “not pleasant” failed to show compensable mental anguish. 901 S.W.2d 434, 445 (Tex.1995). Her statements revealed mere emotions, such as anger, frustration, or vexation. Id. In this case, by contrast, Wilson felt worried about not being able to pay his bills, embarrassed about losing his job, frustrated, and depressed to the point he did not want to get out of bed. Because of his financial condition, he felt compelled to sell his home and move in with his stepdaughter. Wilson stated he suffered from sleeplessness, self-doubt, and lack of confidence. He explained some of these feelings lasted six months while others still lingered at the time of trial.

In Gunn Infiniti, Inc. v. O’Byrne, the supreme court held that grief, disappointment, public humiliation, and embarrassment over problems with an automobile did not rise to the level of compensable mental anguish. 996 S.W.2d 854, 860–61 (Tex.1999). There, the plaintiff made conclusory statements of his emotional state and many of his feelings were unrelated to his cause of action against the automobile dealership. Id. In the present case, Wilson articulated the source of his anguish—worry over not being able to pay his bills, being embarrassed about losing his job and not being able to find a job, and loss of confidence from being terminated. We conclude there is legally and factually sufficient direct evidence of the nature, duration, and severity of Wilson’s mental anguish, thus establishing a substantial disruption in his daily routine. Latham, 972 S.W.2d at 70.

*14 We next consider whether the $250,000 in damages awarded by the jury was fair and reasonable. Saenz, 925 S.W.2d at 614. Damages for mental anguish are considered uniquely within the province of the fact finder because of the subjective nature of such injuries and the nature of the related testimony and evidence. Wal Mart Stores, Inc. v. Itz, 21 S.W.3d 456, 480 (Tex.App.-Austin 2000, pet. denied); Southwestern Bell Tel. Co. v. Wilson, 768 S.W.2d 755, 763 (Tex.App.-Corpus Christi 1988, writ denied); see also Rosenboom Mach. & Tool, Inc. v. Machala, 995 S.W.2d 817, 829 (Tex.App.-Houston [1st Dist.] 1999, pet. denied) (recognizing matters of pain and suffering are necessarily speculative, and it is within province of jury to set amount of such damages).

Here, Wilson suffered embarrassment because of the loss of his job, worry over not being able to pay his bills, loss of confidence because of his termination, sleeplessness, and depression. He described feeling compelled to sell his home and move in with his stepdaughter. Wilson also stated that he no longer could find employment in the car dealership industry, which he had worked in for many years, and had to start over selling insurance at the age of 62. We conclude that the jury’s award of $250,000 for mental anguish was supported by the evidence, was fair and reasonable, and not so contrary to the overwhelming weight of the evidence as to be clearly wrong or unjust.

We sustain Wilson’s cross-point to the extent that it challenges the trial court’s reduction of compensatory damages from $250,000 to $150,000. We overrule Lone Star’s fourth issue.

4. Date of Interest

In its fifth issue, Lone Star complains the trial court used the wrong date for calculating pre- and post-judgment interest.

The amended judgment, signed June 5, 2000, states that Wilson shall recover pre-judgment interest for the period of October 23, 1998 (i.e., the date Wilson filed suit), until March 16, 2000. We agree with Lone Star that the proper ending date for calculating pre-judgment interest should be June 4, 2000—the day before the judgment was rendered.

In the amended judgment, the trial court also ordered post-judgment interest at the rate of 10 percent per annum “from March 17, 2000 until paid in full.” We also agree with Lone Star that the proper beginning date for purposes of calculating post-judgment interest is the date of the amended judgment, i.e., June 5, 2000. Tex. Fin.Code Ann. § 304.005(a) (Vernon Supp.2002).

We sustain Lone Star’s issue five.

CONCLUSION

We affirm the portion of the trial court’s judgment awarding Wilson $73,186 in lost wage damages. We reverse the portion of the judgment awarding Wilson $150,000 in compensatory damages and remand to the trial court for entry of judgment of compensatory damages in the amount awarded by the jury (i.e., $250,000). We also remand the cause to the trial court for the purposes of calculating pre-judgment interest and entering the proper dates for calculating pre- and post-judgment interest as stated in this opinion.

	Footnotes
5		The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.
1		Courts have not required that evidence be presented on every factor to establish a causal link. In Cazarez, the supreme court concluded that evidence on just two of the factors was sufficient to allow the district court to infer the termination in that case violated section 451.001. See Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 452 (Tex.1996) (pointing to evidence employer’s explanation for termination was false and evidence company’s employment manager had expressed doubt employee had gone to see doctor).
2		Lone Star asserts the interrogatory answer constitutes “no evidence” because the interrogatories were not admitted into evidence by the trial court. In support of this argument, Lone Star cites case law requiring admission of interrogatory answers before such evidence can be considered in support of the judgment. See, e.g., Cornell v. Cornell, 570 S.W.2d 22, 23 (Tex.Civ.App.-San Antonio 1978, no writ); Sammons Enters., Inc. v. Manley, 540 S.W.2d 751, 757 (Tex.Civ.App.-Texarkana 1976, writ ref’d n.r.e.). However, the cases relied on by Lone Star do not state that the interrogatory answers were read into the record as they were in this case. To the contrary, one court of appeals has held, where counsel read interrogatory answers into the record, they constituted testimonial evidence which supported the judgment. See Eubanks v. Eubanks, 892 S.W.2d 181, 181–82 (Tex.App.-Houston [14th Dist.] 1994, no writ). Alternatively, Lone Star argues the answers could be considered as impeachment evidence at most. However, Lone Star neither objected to Wilson’s counsel reading the interrogatory answers into the record, nor requested a limiting instruction that the interrogatory answers be considered only for impeachment purposes. See Tex.R. Evid. 105. Thus, the interrogatory answer was evidence that the jury could have considered in determining whether Wagoner was aware of Wilson’s workers’ compensation claims.
3		Dillan was not called by either party to testify at trial.
4		Lone Star further contends evidence existed in the record to support the trial court’s award of $73,186 for lost wages. This figure is calculated as follows. First, nine months wages (i.e., $68,217) should be deducted from the total lost wages claimed by Wilson, i.e., $159,173. This equals $90,956. Then, pursuant to the jury instruction, $7,250 for unemployment insurance and $10,520 Wilson received from other employers should be deducted. After the appropriate deductions are made, the amount of Wilson’s lost wages supported by the evidence equals $73,186, which is the amount awarded by the trial court. Thus, the mathematical equation for determining the appropriate amount of Wilson’s lost wage damages is as follows: $159,173–($159,173 x $68,217 / $159173)–$7,250–$10,520 = $73,186