Court of Appeals of Texas, Dallas.

Rodger KUHL, Appellant,

v.

CITY OF GARLAND, Appellee.

No. 05-97-00539-CV.

|

March 31, 1999.

Before WHITTINGTON, ROACH and O’NEILL, JJ.

OPINION

ROACH.

*1 In this worker’s compensation case, Rodger Kuhl appeals the trial court’s judgment following a jury trial, complaining the jury was improperly allowed to determine whether his on-the-job injury was confined to his right leg. In two points of error, he contends the trial court erred in denying his motion for judgment n.o.v. and motion to disregard the jury’s answer because (1) the issue of confinement was not supported by the City of Garland’s pleadings and (2) the City stipulated to a general injury. In a third point of error, he complains that the trial court erred in ordering him to pay costs because he was the successful party at trial. For the reasons set forth below, we reform the trial court’s judgment to award Kuhl his trial court costs and affirm the judgment as reformed.

Kuhl was supervisor of the City of Garland’s transfer station. He was injured while mowing and was awarded benefits by the Texas Workers’ Compensation Commission. The City appealed the award to the district court. After a trial de novo, the jury found that (1) Kuhl’s on-the-job injury was a producing cause of total incapacity from May 16, 1990 to September 26, 1990 and that Kuhl suffered a total loss of use of his right leg during that time and (2) the injury was a producing cause of permanent partial incapacity with a five percent partial loss of use of his right leg. Additionally, in Question No. 10, the jury found that Kuhl’s injury was confined to his right leg. Kuhl filed a motion to disregard the jury’s answer to Question No. 10 and a motion for judgment n.o.v. The trial court denied Kuhl’s motion and entered judgment in accordance with the jury’s verdict. In the judgment, the trial court ordered all costs be taxed against Kuhl. Kuhl timely appealed.

In his first point of error, he contends the trial court reversibly erred in denying his motion to disregard the jury’s answer to Question No. 10 and his motion for judgment n.o.v. because the issue of confinement was not supported by the pleadings. We disagree.

A court may render judgment n.o.v. if a directed verdict would have been proper. Tex.R.Civ.P. 301; Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex.1991). A judgment n.o.v. is authorized when the pleadings or evidence do not warrant the submission of the question to the jury in the first place. Neller v. Kirschke, 922 S.W.2d 182, 187 (Tex.App.-Houston [1st Dist.] 1995, writ denied). We review de novo whether the City’s pleadings support the judgment. City of San Benito v. Cantu, 831 S.W.2d 416, 423 (Tex.App.-Corpus Christi 1992, no writ).

In making our determination, we liberally construe pleadings in favor of the pleader, particularly when the complaining party has not filed any special exceptions. Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex.1993) (op. on reh’g); Spiers v. Maples, 970 S.W.2d 166, 168 (Tex.App.-Fort Worth 1998, no pet.); Bank One, Texas, N.A. v. Stewart, 967 S.W.2d 419, 431 (Tex.App.-Houston [14th Dist.] 1998, no pet. h.) (op. on reh’g). Pleadings shall give fair notice of the claim or defense asserted to provide the opposing party with enough information to enable him to prepare a defense or answer to the defense asserted. Bank One, Texas, N.A., 967 S.W.2d at 430; Tex.R.Civ.P. 45(b), 47(a). A petition is sufficient if a cause of action or defense may be reasonably inferred from what is specifically stated. Id.

*2 In its amended answer, the City pleaded that “[a]ny injury sustained by [Kuhl] on or about May 16, 1990 was a specific injury to his right lower extremity at or above the knee.” Although the City did not use the word “confined,” we conclude the pleading was sufficient to put Kuhl on notice that the City was contending Kuhl’s injury was limited to his right leg. In so concluding, we necessarily reject Kuhl’s suggestion that the City had to use “magic words” to put confinement in issue. There is nothing in the rules of civil procedure, nor in Texas case law, to require such, particularly in light of the fact that Kuhl did not specially except. See Daniels v. Allen, 811 S.W.2d 278, 280 (Tex.App.-Tyler 1991, no writ) (“The key to determining whether a cause of action has been pleaded is whether there are sufficient allegations to give fair notice of the claim, not whether certain magic words are used in certain portions of the petition.”). Because we conclude the City’s pleadings were sufficient to support submission of the question on confinement to the jury, we overrule the first point of error.

In his second point of error, Kuhl complains that submission of Question No. 10 was improper because the City stipulated otherwise at the beginning of trial. The record shows the City stipulated that “on May the 16th 1990, Rodger Kuhl was injured in the course and scope of his employment.” Kuhl argues that because the City “made no claim that the injury was limited or otherwise confined to Kuhl’s right leg,” it stipulated to a “general injury.” Again, we disagree.

A stipulation is an agreement, admission, or concession made in a judicial proceeding by the parties or their attorneys respecting some matter incident thereto. Shepherd v. Ledford, 962 S.W.2d 28, 33 (Tex.1998); Ortega-Carter v. American Int’l Adjustment Co., 834 S.W.2d 439, 441-42 (Tex.App.-Dallas 1992, writ denied). A stipulation should not be given greater effect than intended and should not be construed as an admission of a fact intended to be controverted. Austin v. Austin, 603 S.W.2d 204, 207 (Tex.1980); Hansen v. Academy Corp., 961 S.W.2d 329, 335 (Tex.App.-Houston [1st Dist.] 1997, pet. denied).

Here, the City stipulated that Kuhl was “injured in the course and scope of his employment.” Contrary to Kuhl’s assertion, there is nothing in this stipulation to suggest the City agreed that Kuhl suffered a “general” injury. As stated previously, the City pleaded that Kuhl suffered a specific injury to his right leg. Were we to adopt the interpretation advanced by Kuhl, we would be giving the stipulation greater effect than it indicates the City intended and would be construing as an admission a fact that the City’s pleadings show it intended to controvert. We overrule the second point of error.

*3 In his third point of error, Kuhl contends the trial court erred in ordering him to pay costs. Specifically, he contends that because he recovered the right to future medical expenses, he was the successful party and was therefore entitled to recover costs. On this point, we agree with Kuhl.

Unless there is a showing of good cause, stated on the record, the trial court must award to the successful party the amount of recoverable costs incurred as a result of the litigation. See Tex.R.Civ.P. 131, 141; see also Keever v. Finlan, 05-96-01411-CV, slip op. at 14 (Tex.App.-Dallas February 18, 1999, no pet. h.). A successful party is one who obtains a judgment of a competent court vindicating a civil claim of right. Hasty, Inc. v. Inwood Buckhorn J.V., 908 S.W.2d 494, 502 (Tex.App.-Dallas 1995, writ denied). A party challenging the award of costs on appeal must show the trial court abused its discretion. Keever, slip op. at 14.

In this case, the trial court’s judgment credited the City for $4,522 in benefits previously paid to Kuhl; the credit exceeded the jury’s award of $2,213. Thus, the City argues that because the judgment was offset by the credit, Kuhl was not the “successful party.” The judgment, however, also ordered that Kuhl “recover from the City of Garland all reasonable and necessary medical expenses for his injury of May 16, 1990 from the date of this Judgment and into the future….”

This case was brought by the City as an appeal from a final ruling of the Texas Workers’ Compensation Commission awarding Kuhl workers’ compensation benefits. Kuhl counterclaimed. In its amended answer, the City alleged, among other things, that any disability was due to diseases, natural causes, and prior injuries “wholly disassociated from the alleged injury forming the basis” of the Commission’s award. The fact that the City, on the day of trial, stipulated to an injury simply relieved Kuhl of having to obtain a jury finding on that issue. Kuhl ultimately received affirmative findings on the questions he asked of the jury.

We conclude that because (1) the jury found in Kuhl’s favor on questions upon which he had the burden of proof and (2) the judgment awards damages for future medical expenses, Kuhl was the successful party at trial. See Mixon v. National Union Fire Ins. Co., 806 S.W.2d 332, 335 (Tex.App.-Fort Worth 1991, writ denied) (concluding that worker who received take-nothing judgment because of offset but who also recovered future medical expenses was successful party under rule 131). Because the trial court failed to state good cause on the record, we conclude the trial court abused its discretion by assessing costs against Kuhl. See Tex.R.Civ.P. 131, 141; Keever, slip op. at 15. Accordingly, we sustain the third point of error.

In conclusion, we reform the trial court’s judgment to reflect that all trial court costs are assessed against the City of Garland. We affirm the trial court’s judgment as reformed.