in the Estate of Tommy D. Sutton ( 2011 )

                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-11-00072-CV

                                                ______________________________

                  IN THE ESTATE OF TOMMY D. SUTTON, DECEASED

                                            On Appeal from the County Court at Law

                                                             Bowie County, Texas

                                                     Trial Court No. 09C1650-CCL

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                        Memorandum Opinion by Chief Justice Morriss

                                                      MEMORANDUM OPINION

            Brenda Sutton Levetz, the sole appellant in this case, has filed a motion seeking to dismiss her appeal.  Pursuant to Rule 42.1 of the Texas Rules of Appellate Procedure, her motion is granted.  Tex. R. App. P. 42.1.

            We dismiss the appeal.

                                                                        Josh R. Morriss, III

                                                                        Chief Justice

Date Submitted:          August 8, 2011

Date Decided:             August 9, 2011

">A I've been told they have to be stamped as a flood damaged vehicle.

Q Okay. And have you ever attempted to buy or sell a flood damaged vehicle?

A No.

. . . .

Q Dr. Underwood, would you tell the jury the actual cash value of this truck to you on the day that the vehicle was stolen, before it was stolen.

A Actual cash value?

Q Yes.

A Probably around $10,500.

Q And will you tell the jury the actual cash value of this vehicle to you after the flood damage occurred?

A Nothing, 0.

Id. at 641.

          The Dallas Court of Appeals held that Underwood's testimony showed he was testifying to matters within his knowledge and that the testimony had some probative value on the issue of market value. Id. at 642 (citing River Oaks Townhomes Owners' Ass'n, Inc. v. Bunt, 712 S.W.2d 529, 533 (Tex. App.—Houston [14th Dist.] 1986, writ ref'd n.r.e.); Hochheim Prairie Farm Mut. Ins. Ass'n v. Burnett, 698 S.W.2d 271, 275–76 (Tex. App.—Fort Worth 1985, no writ); Tom Benson Chevrolet, Inc. v. Alvarado, 636 S.W.2d 815, 823 (Tex. App.—San Antonio 1982, writ ref'd n.r.e.)). The court therefore found Underwood's testimony provided some evidence of the market value of the vehicle in its defective condition.

          In Underwood, the owner testified that, from his experiences in dealing with his flood-damaged car, and the information he learned in the marketplace as to its value, the vehicle was worthless. In contrast, the substance of Cooper's testimony, like those of the owners in Porras, Lewis, and Elliott, affirmatively revealed that the basis of his opinion was the intrinsic or personal value of the automobile to him. The evidence showed Cooper took the vehicle to various mechanics, who regarded the vehicle as unsafe for long trips. There was no evidence as to how that affected the market value of the vehicle.

          We, like the Texas Supreme Court in Porras, "should not be understood as retreating from the general rule that an owner is qualified to testify about the market value of his property." Porras, 675 S.W.2d at 505. And we, like the court in Underwood, do not consider that an owner's use of the words "to me," in stating his or her opinion concerning the value of his or her own property, automatically expresses intrinsic, rather than market, value so long as the record affirmatively shows, as it did in Underwood, that such opinion is based on market forces. Even the specific words "market value" are not necessary as long as the record is clear the opinion expressed is based on market forces, not solely on intrinsic or personal value.

          A review of Cooper's testimony reveals that his valuation of the vehicle was based on the personal value of the vehicle to him. His testimony was he purchased a Lincoln Town Car because of its attributes for comfort, safety, and ease of driving. He testified the main purpose for buying the vehicle was to make long trips to Dallas and Alabama. He did not, however, regard the vehicle as dangerous for "running errands . . . in town." He did regard the vehicle as "unsafe for what I want it for, long distance travel . . . . And so we bought the other car to be able to make long trips, . . . ." He testified the value of the vehicle was "[n]othing," or "absolutely worthless to me for what I bought it for." The basis of his valuation was the vehicle's personal value to him, not the price the vehicle would bring on the market. The Texas Supreme Court in Porras found that such opinion testimony, which affirmatively shows the owner is referring to personal, not market, value, is no evidence. For those reasons, Cooper's testimony is no evidence regarding the market value of the automobile as received in its defective condition to support the submission of, and the jury's finding in response to, the DTPA damages issue.

          There was substantial evidence the vehicle was in a defective condition when Cooper purchased it. Both Cooper and Joe Crane testified regarding the steering problem. However, there was no evidence of a reduction in market value. The only evidence of the value of the car in its defective condition was Joe Crane's testimony that the value of the vehicle had not diminished because of the alignment concern. The burden is on the plaintiff to establish its damages with reasonable certainty to enable a jury to compute them. Oryx Energy Co. v. Shelton, 942 S.W.2d 637, 642 (Tex. App.—Tyler 1996, no writ); see also Goose Creek Consol. Ind. Sch. Dist. v. Jarrar's Plumbing, Inc., 74 S.W.3d 486, 496–97 (Tex. App.—Texarkana 2002, pet. denied) (finding owner of property may only recover for such loss of use from trespass to land if reasonable value of use can be established with fair certainty).

          There is no evidence of the diminished value of the vehicle in its alleged defective condition. Therefore, the jury's verdict of $5,000.00 diminished value has no support in the record, and Crane and Ford's no-evidence challenge is sustained. We find it unnecessary to address Crane and Ford's remaining challenge that Cooper's testimony referred to value at time of trial, not time of purchase.

Expenses

          Crane and Ford also contend there was no evidence to support the jury's verdict on the expenses Cooper incurred. Under the DTPA, economic loss is determined by the total loss sustained by the consumer as a result of the deceptive trade practice. Kish v. Van Note, 692 S.W.2d 463, 466 (Tex. 1985). This standard envisions compensating plaintiffs for "the total loss . . . includ[ing] related and reasonably necessary expenses." Henry S. Miller Co. v. Bynum, 836 S.W.2d 160, 162 (Tex. 1992). Cooper testified to the various evaluations he obtained from independent mechanics, but did not testify to any amount of expense he incurred. The only offer made of the amount of expense Cooper incurred was as follows:

          Q. Now, in getting all of the different independents to look at things, and I believe we had some -- you had to buy your own tags and they didn't even tag it for you, even though they charged you for it, how much -- Have you spent about $1,100.00 in trying to get all of this done?

          [Defense Counsel]: Objection to leading.

          THE COURT: Sustained, . . . .

The trial court properly sustained the objection, and no other evidence on the amount of expenses Cooper incurred was offered. As noted above, the burden is on the plaintiff to establish his or her damages with reasonable certainty to enable a jury to compute them. Shelton, 942 S.W.2d at 642; see also Jarrar's Plumbing, Inc., 74 S.W.3d at 496–97. There was no evidence admitted to enable the jury to compute any expenses Cooper incurred. The jury's verdict of $1,000.00 for expenses, therefore, has no support in the record, and Crane and Ford's no-evidence challenge is sustained.

Additional Damages

          As there was no evidence of economic damages, additional damages cannot be awarded. Tex. Bus. & Com. Code Ann. § 17.50(b)(1); see Nabours v. Longview Sav. & Loan Ass'n, 700 S.W.2d 901, 903 (Tex. 1985) (exemplary or punitive damages may not be recovered in absence of award of actual damages).

Disposition

          Crane and Ford request that we reverse the judgment of the trial court and render judgment that Cooper take nothing. The general rule is, where an appellate court finds the evidence legally insufficient to support a damages verdict, the court should reverse and render a take-nothing judgment as to that amount. Larson v. Cactus Util. Co., 730 S.W.2d 640, 641 (Tex. 1987); Nat'l Life & Accident Ins. Co. v. Blagg, 438 S.W.2d 905, 909 (Tex. 1969) (when appellate court sustains "no-evidence" point, it is generally court's duty to render judgment for appellant); see also Lewis, 709 S.W.2d at 176 (finding duty to render take-nothing judgment when appellant's "no-evidence" point is sustained is basic rule of law).

          Under certain circumstances, however, an appellate court may reverse and remand a case for a new trial in the interests of justice. Tex. R. App. P. 43.3 provides, "[w]hen reversing a trial court's judgment, the court must render the judgment that the trial court should have rendered, except when: (a) a remand is necessary for further proceedings; or (b) the interests of justice require a remand for another trial." Appellate courts have broad discretion to exercise that power. Fanning v. Fanning, 847 S.W.2d 225, 226 (Tex. 1993); Scott v. Liebman, 404 S.W.2d 288, 294 (Tex. 1966).

          Appellate courts have reversed for a new trial where, among other circumstances, the plaintiff failed to show damages with reasonable certainty, but the interests of justice required the plaintiff be given an opportunity to show the proper measure of his or her damages. Porras, 675 S.W.2d at 506; Varel Mfg. Co. v. Acetylene Oxygen Co., 990 S.W.2d 486, 500 (Tex. App.—Corpus Christi 1999, no pet.); Williams v. Gaines, 943 S.W.2d 185, 193 (Tex. App.—Amarillo 1997, writ denied); A.B.F. Freight Sys., Inc. v. Austrian Import Serv., Inc., 798 S.W.2d 606, 616 (Tex. App.—Dallas 1990, writ denied); Powell-Buick-Pontiac GMC, Inc. v. Bowers, 718 S.W.2d 12, 14 (Tex. App.—Tyler 1986, writ ref'd n.r.e.).

          In Williams, 943 S.W.2d at 193, the Amarillo Court of Appeals found no evidence was presented that met the definition of fair market value in the jury's instructions. The court, however, remanded the matter for a new trial. As relevant interests of justice, the court cited the jury's findings that the plaintiff and defendant had an agreement, that the defendant breached the agreement, and that the plaintiff sustained some loss as a result. Id.; see also A.B.F. Freight Sys., Inc., 798 S.W.2d at 616 (finding that, although plaintiff did not prove its damages with reasonable certainty, there was some evidence which showed damages generally, and interests of justice, therefore, required remand for new trial); Bowers, 718 S.W.2d at 14 (although finding no evidence to support jury's findings on plaintiff's DTPA claim, record demonstrated plaintiff did sustain some damages, and cause was therefore remanded for new trial in interests of justice).

          We find similar interests of justice here. The jury found Crane and Ford engaged in one or more false, misleading, or deceptive acts or practices that were a producing cause of actual damages to Cooper, that they failed to comply with a warranty that was a producing cause of damages to Cooper, and that such conduct by Crane and Ford, in one or both instances, was committed knowingly. Under these circumstances, we find the interests of justice require a remand for another trial.

          We reverse the judgment and remand for a new trial.

                                                                           Donald R. Ross

                                                                           Justice   

Date Submitted:      December 18, 2003

Date Decided:         January 8, 2004