Court of Appeals of Texas, Fort Worth.

Charles M. KENNEDY, Appellant

v.

PROTECTIVE INSURANCE CO. Appellee

No. 02-97-00254-CV.

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April 9, 1998.

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Rehearing Overruled May 14, 1998.

Attorneys & Firms

Charles M. Kennedy, Keller, Texas, for Appellant, pro se.

Bishop & Hummert, and Alexander N. Beard, Dallas, Texas, for Appellee.

Before Panel A: CAYCE, C.J.; DAUPHINOT and BRIGHAM, JJ.

OPINION

BRIGHAM, J.

*1 Appellant Charles M. Kennedy has a back condition that the Appeals Panel of the Texas Workers’ Compensation Commission (TWCC) determined to be an ordinary disease of life and not an occupational disease. He petitioned for judicial review and a jury also found no compensable injury, which he now appeals in ten points. We affirm.

The Court’s Charge

In his first point, Appellant asserts that the trial court erred by disclosing the results of the contested case hearing to the jury in the charge. This point is without merit. First, Appellant made no objection to the charge on that basis at the trial court as required to preserve error under the rules of civil and appellate procedure. See Tex.R. Civ. P. 274; Tex.R.App. P. 33.1(a). Second, the Labor Code provisions governing judicial review state that the court “shall inform the jury in the court’s instructions, charge, or questions to the jury of the commission appeals panel decision on each disputed issue.” Tex. Labor Code Ann. § 410.304(a) (Vernon 1996); see also ESIS, Inc. Servicing Contractor v. Johnson, 908 S.W.2d 554, 559-60 (Tex.App.-Fort Worth 1995, writ denied).

We overrule point one.

Findings of Fact and Conclusions of Law

Appellant complains in his second point that the trial court erroneously failed to file findings of fact and conclusions of law pursuant to his request. Findings of fact and conclusions of law are not required and are inappropriate in a jury trial. Rule 296 of the rules of civil procedure only allows a party to request findings and conclusions in a non-jury trial. See Tex.R. Civ. P. 296; see also Cravens v. Transport Indem. Co., 738 S.W.2d 364, 367 (Tex.App.-Fort Worth 1987, writ denied).

We overrule point two.

Admission and Exclusion of Evidence

Appellant’s points three, four, and nine contend that the trial court improperly excluded Appellant’s evidence. Nowhere in Appellant’s brief is the excluded evidence detailed or referenced. Furthermore, a review of the entire record discloses neither an attempt by Appellant to introduce any evidence that the trial court did not allow nor any offer of proof of such excluded evidence. We find no error on these points and overrule them.

Similarly, Appellant asserts in points seven and eight that the trial court erred by allowing Appellee to “propound questions to witnesses to establish things … that did not exist” and “to question witnesses in a manner which was wrongfully establishing stenosis and degenerative disk disease … rather than several levels of bulging or herniated disks.” Appellant made no objections to any questions asked by Appellee. Appellant further makes no attempt to point out on appeal the specific testimony complained of by these points. We likewise find no error on these points and overrule them.

Point five complains that the trial court erred by allowing Dr. Mark Parker to testify as an expert witness. Appellant raised no objection to Dr. Parker’s qualification as an expert witness at trial and therefore preserved no error. We overrule point five.

Improper Points on Appeal

*2 Appellant’s points six and ten are multifarious, confusing, and make no specific complaints about any specific portion of the record. The rules of appellate procedure require Appellant to state concisely the points presented for review and to present a clear and concise argument with appropriate citations to authorities and the record. See Tex.R.App. P. 38.1(e), (h). Points six and ten do neither. However, in the spirit of the liberal briefing requirements of the rules of appellate procedure and in deference to pro se litigants, we will treat them as challenges to the sufficiency of the evidence to support the verdict.

Sufficiency of the Evidence

Appellant bore the burden of proving by a preponderance of the evidence that the appeals panel decision was erroneous. See Tex. Labor Code Ann. § 410.303. Therefore, on appeal, he must show that the jury’s finding was against the great weight and preponderance of the evidence. See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983); Gooch v. American Sling Co., 902 S.W.2d 181, 184 (Tex.App.-Fort Worth 1995, no writ). A complaint that a jury answer is against the overwhelming weight of the evidence must be raised in a motion for new trial. See Tex.R. Civ. P. 324(b)(3). Although we question whether Appellant preserved error, again we will treat his pro se “Motion to Correct Jury Finding” as doing so in the spirit of fairness.

In reviewing a point asserting that an answer is “against the great weight and preponderance” of the evidence, we must consider and weigh all of the evidence, both the evidence that tends to prove the existence of a vital fact as well as evidence that tends to disprove its existence. See Ames v. Ames, 776 S.W.2d 154, 158-59 (Tex.1989), cert. denied, 494 U.S. 1080, 110 S.Ct. 1809, 108 L.Ed.2d 939 (1990); Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). After considering all the evidence, the point should only be sustained if the finding is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust.

This court has reviewed the testimony and exhibits on record. We do not find that the jury’s answer was so contrary to the overwhelming weight of the evidence as to be manifestly unjust in this case. Therefore, we overrule points six and ten.

Conclusion

Because we overrule each of Appellant’s points, we affirm the trial court’s judgment.