Summary
stating that estimate without testimony of person making estimate or other expert testimony is no evidence of necessity of repair or reasonableness of costs of repair
Summary of this case from Paschal v. EngleOpinion
No. 05-03-01451-CV
Opinion Filed July 19, 2004.
On Appeal from the County Court at Law No. 5, Dallas County, Texas, Trial Court Cause No. cc-02-603-e.
Reverse and Render.
Before Justices FITZGERALD, RICHTER and LANG.
MEMORANDUM OPINION
This case involves a suit for defective repairs made to an automobile subsequent to an accident. In two issues, appellant taxi company claims the trial court erred by allowing hearsay testimony on the amount of repair damages, and that there was no evidence the estimated costs of repair were reasonable and necessary. Because we conclude there was no evidence the repair costs were reasonable, we reverse and render judgment that appellee take nothing. The facts of this case are well-known to the parties, and we do not recite them in detail. Because all dispositive issues are clearly settled in the law, we issue this memorandum opinion. Tex.R.App.P. 47.1.
At trial, appellee testified that an automobile repair company provided a repair estimate in the amount of $5,652.29, and that the repairs were necessary because one of appellant's taxi drivers negligently collided with appellee. The repair estimate was neither offered or admitted into evidence. The professional who made the estimate did not testify.
The traditional legal sufficiency or "no-evidence" test requires that we consider only the evidence favorable to the verdict and disregard all evidence and inferences to the contrary to determine whether any probative evidence exists to support the verdict. See Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995); Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981). We indulge every reasonable inference deducible from the evidence in favor of the prevailing party. Formosa Plastics Corp. v. Presidio Eng'rs Contractors, 960 S.W.2d 41, 48 (Tex. 1998). If there is more than a scintilla of evidence to support a finding, a no-evidence challenge fails. Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996); Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex. 1987).
A party seeking to recover damages measured by the cost of repair must present competent evidence so that the trier of fact is justified in finding that the repairs are necessary to restore the property to its former condition and that the cost of repairs is reasonable and fair. See Liptak v. Pensabene, 736 S.W.2d 953, 958 (Tex. App.-Tyler 1987, no writ). The magic words "reasonable" and "necessary" need not be used as long as there is sufficient evidence for the trier of fact to conclude that the repairs are necessary and the cost is reasonable. Ron Craft Chevrolet, Inc. v. Davis, 836 S.W.2d 672, 677 (Tex. App.-El Paso 1992, writ denied); Carrow v. Bayliner Marine Corp., 781 S.W.2d 691, 694 (Tex. App.-Austin 1989, no writ). For example, expert testimony of the person making the estimates or performing the repairs or third-party approval of the repairs has been held sufficient to support an award of damages based on the cost of repairs. See Ron Craft Chevrolet, Inc., 836 S.W.2d at 677; Carrow, 781 S.W.2d at 694; Liptak, 736 S.W.2d at 958. However, an estimate without the testimony of the person who made the estimate or other expert testimony is no evidence of the necessity of the repair or the reasonableness of the cost of the repair. Jordan Ford, Inc. v. Alsbury, 625 S.W.2d 1, 3 (Tex. Civ. App.-San Antonio 1981, no writ).
In this case, the only evidence regarding the repair cost was appellee's testimony. He testified that he obtained an estimate for the repairs and that the repairs were necessary. The estimate appellee received was not admitted into evidence. There was no expert testimony regarding the estimate, and the person making the estimate did not testify. The evidence of damages in this case consists of appellee testifying to the estimated cost of the repairs. The record contains evidence of the necessity of the repairs, but no evidence of the reasonableness of the cost of those repairs, and thus, no evidence to support the trial court's findings on damages. Because there was no evidence of damages, the trial court's judgment cannot be sustained on any legal theory. Accordingly, we sustain appellant's second issue. Because of our disposition of appellant's second issue, we need not address its first issue.
We reverse the trial court's judgment and render judgment that appellee take nothing.