Opinion
No. 05-04-00523-CV
Opinion issued February 10, 2005.
On Appeal from the County Court at Law No. 2, Dallas County, Texas, Trial Court Cause No. 03-9971-B.
Affirmed.
Before Justices MOSELEY, FRANCIS, and MAZZANT.
MEMORANDUM OPINION
In this restricted appeal, Friendly Chevrolet, Ltd., challenges a no-answer default judgment in favor of Charlee Springs. In a single issue, Friendly contends the evidence is legally and factually insufficient to support Springs's claim for damages. Because the facts of this case and its procedural history are well-known to the parties, we do not recite them in detail. The dispositive issue being clearly settled in law, we issue this memorandum opinion. See Tex.R.App.P. 47.4. We affirm the trial court's judgment.
Springs sued Friendly for violations of the Texas Deceptive Trade Practices Act and negligent misrepresentation in connection with the lease of a vehicle. In her petition, she alleged that Friendly contacted her, as a previous customer, and offered to sell her another vehicle. At the dealership, the sales representative offered to lease her a Trailblazer. Because Springs was going to trade in her vehicle which was not paid off, there was going to be a deficiency. The sales representative told Springs she would receive rebates to cover the deficiency and also assured her that the only difference between buying and leasing was "$100 less per month for leasing." The sales representative also told Springs she could turn in the vehicle in thirty-six months and walk away. Springs alleged that Friendly's assurances were not true.
When Springs applied for financing, the first bank declined her. Springs then applied with Chase Bank, which also declined terms of the contract but submitted a counteroffer. Springs declined the counteroffer and never signed or agreed to a new application or contract with Chase or Friendly. Springs requested the return of her trade-in vehicle, but Friendly did not return it.
Friendly did not file an answer to the lawsuit, and Springs obtained a default judgment. At the default judgment hearing, Springs testified she went to the dealership to negotiate a lease and traded in her own vehicle. At the time, the salesman told her the lease was thirty-six months. Two banks declined financing, but the second bank, Chase, made a counteroffer that Springs declined. Nevertheless, the dealership sent in the paperwork and got the deal approved on the counteroffer that Springs declined. The following testimony was then elicited:
[PLAINTIFF'S ATTORNEY]: As a result of that transaction, it's my understanding that they kept your trade-in vehicle even though you had declined the deal?
[SPRINGS]: Correct.
[PLAINTIFF'S ATTORNEY]: And they sold it off, apparently?
[SPRINGS]: Yes.
[PLAINTIFF'S ATTORNEY]: And your losses on that deal were $6,800 for the value of the vehicle?
[SPRINGS]: Yes.
[PLAINTIFF'S ATTORNEY]: And the $500 down payment?
[SPRINGS]: Yes, sir.
* * *
[PLAINTIFF'S ATTORNEY]: So for the loss of your vehicle and the $500, it's my understanding that that comes to $7,300?
[SPRINGS]: That is correct.
After hearing the evidence, the trial court awarded Springs $7,300 in actual damages, $21,900 in treble damages for an intentional deception under the DTPA, and attorney's fees. Four-and-a-half months later, Friendly filed a restricted appeal attacking the legal and factual sufficiency of the evidence to support the award of damages.
To successfully attack a default judgment by restricted appeal, an appellant must (1) file the restricted appeal within six months after the final judgment is signed, (2) be a party to the lawsuit, (3) have not participated at trial, and (4) demonstrate error apparent from the face of the record. Quaestor Invs., Inv. v. State of Chiapas, 997 S.W.2d 226, 227 (Tex. 1999); see also Tex.R.App.P. 30. The only issue in this appeal is whether there is error apparent on the face of the record. The face of the record consists of all papers on file in the appeal, including the reporter's record. Norman Communications, Inc. v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam); Westcliffe, Inc. v. Bear Creek Const., Ltd., 105 S.W.3d 286, 289 (Tex.App.-Dallas 2003, no pet.). Sufficiency of the evidence may be reviewed in a restricted appeal. Norman Communications, 955 S.W.2d at 270.
A party who challenges the legal sufficiency of the evidence to support an issue upon which it did not have the burden of proof at trial must demonstrate on appeal that there is no evidence to support the adverse finding. Dallas County v. Holmes, 62 S.W.3d 326, 329 (Tex.App.-Dallas 2001, no pet.) (citing Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983)). When reviewing a no evidence point, we consider only the evidence supporting the finding and disregard all evidence to the contrary. Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex. 2002). If there is any evidence of probative force to support the finding, the no evidence challenge fails. ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997).
In reviewing a factual sufficiency challenge, we consider and weigh all the evidence in support of and contrary to the finding and will set aside the judgment only if it is 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). The amount of evidence necessary to affirm a judgment is far less than that necessary to reverse a judgment. Eureste v. Comm'n for Lawyer Discipline, 76 S.W.3d 184, 195 (Tex.App.-Houston [14th Dist.] 2002, no pet.).
In its sole issue, Friendly argues the evidence adduced at the default judgment hearing is legally and factually insufficient because it fails to refer to the market value of Springs's vehicle and Spring's testimony regarding the value of her trade-in vehicle is conclusory and speculative. Friendly argues these complaints jointly and does not separate its legal sufficiency complaint from its factual sufficiency complaint. We therefore address these complaints together.
An owner is qualified to testify about the market value of his property, even if he could not qualify to testify about the value of like property belonging to someone else. Porras v. Craig, 675 S.W.2d 503, 504 (Tex. 1984). This testimony must be based on the owner's assessment of the market value and not the intrinsic or some other value of the property to him. Id. at 505; Redman Homes, Inc. v. Ivy, 920 S.W.2d 664, 669 (Tex. 1996). Market value is defined as the price property would bring when offered for sale by one who desires but is not obligated to sell, and is bought by one who is under no necessity to buy. Ford Motor Co. v. Cooper, 125 S.W.3d 794, 799 (Tex.App.-Texarkana 2004, no pet.). Intrinsic value, on the other hand, is an inherent value not established by market forces; it is a personal or sentimental value. Id.
Given the context of Springs's testimony at the default judgment hearing, we conclude the evidence is both legally and factually sufficient to establish market value. Springs was specifically testifying about the negotiations on a lease at Friendly. She testified that the dealership sent through financing paperwork that she did not approve to obtain financing on a lease vehicle. Friendly then kept her vehicle and sold it. Spring testified her loss "on that deal" was $6,800 for the value of the vehicle and the $500 down payment. Although Springs did not use the words "market value," we conclude that a reasonable factfinder could conclude from this testimony that the $6,800 related to market value of the vehicle, not any personal or sentimental value. Further, Springs's testimony was neither conclusory nor speculative. In sum, we conclude the evidence was legally and factually sufficient to support Springs's damage claim. We therefore reject her sole issue.
We affirm the trial court's judgment.