Opinion
No. 04-04-00351-CV
Delivered and Filed: February 9, 2005.
Appeal from the 38th Judicial District Court, Medina County, Texas, Trial Court No. 02-04-15909-CV, Honorable Watt Murrah, Judge Presiding.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Karen ANGELINI, Justice.
MEMORANDUM OPINION
Richard Whatley d/b/a Whatley's Flying Service appeals the trial court's judgment in a suit based on a breach of a bailment agreement. Whatley contends the trial court erred in: (1) computing the amount of the settlement credit and pre-judgment interest; (2) admitting evidence regarding the amount of hull insurance he obtained for his plane; and (3) failing to award court costs. Whatley also contends that the amount of damages and attorney's fees awarded by the jury are not supported by any evidence or are against the great weight and preponderance of the evidence. Lindeman, Inc. d/b/a Rusty's Flying Service raises one issue on cross-appeal challenging the partial summary judgment granted by the trial court with regard to liability. We affirm the trial court's judgment.
Bailment Relationship
In its cross-appeal Lindeman contends that the trial court erred in granting partial summary judgment in favor of Whatley because either: (1) no bailment agreement existed; (2) any bailment agreement that existed was only gratuitous and Whatley failed to plead or prove gross-negligence; or (3) Lindeman's summary judgment evidence either conclusively negated or raised fact issues as to whether the presumption of negligence was rebutted.
The parties filed cross-motions for summary judgment with regard to the liability issue. Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Tex. Commerce Bank, N.A. v. Grizzle, 96 S.W.3d 240, 252 (Tex. 2002). In reviewing a traditional motion for summary judgment, the reviewing court must resolve every doubt and indulge every reasonable inference in the nonmovant's favor. Id. All evidence favorable to the nonmovant will be taken as true. Id. When both sides move for summary judgment and the trial court grants one motion but denies the other, the reviewing court should review both sides' summary judgment evidence, determine all questions presented, and render the judgment that the trial court should have rendered. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).
The basic elements of a bailment are: (1) the delivery of personal property by one person to another in trust for a specific purpose; (2) acceptance of such delivery; (3) an express or implied contract that the trust will be carried out; and (4) an understanding under the terms of the contract that the property will be returned to the transferor or dealt with as the transferor directs. Sisters of Charity of the Incarnate Word, Houston, Texas v. Meaux, 122 S.W.3d 428, 431 (Tex.App.-Beaumont 2003, pet. denied); Prime Products, Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 635 (Tex.App.-Houston [1st Dist.] 2002, pet. denied). Two types of bailment relationships exist: a bailment for mutual benefit and gratuitous bailment. A bailment is for the mutual benefit of the parties as long as the property of the bailor is delivered to and accepted by the bailee as an incident of a business in which the bailee makes a profit. See Andrews v. Allen, 724 S.W.2d 893, 895 (Tex.App.-Austin 1987, no writ). "[A] business institution, which, within the scope of its business accepts and receives a bailor's property, even though no charge is made, is with respect to such property more than a mere gratuitous bailee, and should be held to the responsibilities of a bailee for mutual benefit, inasmuch as such services attract patronage." Id. at 895-96.
In a bailment for the mutual benefit of the parties, the bailee is held to an ordinary or reasonable degree of care. Prime Products, Inc., 97 S.W.3d at 635. The bailor makes a prima facie or presumptive case of negligence by proving bailment and return of the goods by the bailee in a damaged condition, or failure to return the goods at all. Id. Once a prima facie case is presented and the fact of negligence is presumed, the bailee has the duty to produce evidence of some other cause of loss or injury. Id. If the bailee fails to rebut the presumption, liability is established as a matter of law. Mayhar v. Triana, 701 S.W.2d 325, 327 (Tex.App.-Eastland 1985, writ ref'd). Under a gratuitous bailment, a bailee is held to a slight standard of care, and is responsible only for gross negligence. Greater Southwest Intern. Airways, Inc. v. Arlington Exec. Air, Inc., 432 S.W.2d 740, 743 (Tex.Civ.App.-Fort Worth 1968, no writ).
"The presumption on which the bailor may rely is a mere rule for the conduct of the trial." Adolphus Garage v. Nelson, 387 S.W.2d 472, 475 (Tex.Civ.App.-Tyler 1965, no writ). "It puts upon the bailee the risk of a directed verdict if he does not meet it but does no more; once he has done so, it disappears from the case." Id.
In this case, the evidence conclusively established that Whatley delivered his plane to Wiltex pursuant to Wiltex's agreement to paint the plane. This created a bailment for the mutual benefit of the parties. Wiltex subsequently delivered the plane to Lindeman for storage. Lindeman rented space in the hangar it leased to owners of planes for storage. Although Lindeman's owner testified that he stored the plane as a courtesy and did not charge for the storage, the acceptance of the plane for storage was within the scope of and incident to Lindeman's business, making the bailment for the mutual benefit of the parties.
Because the plane was not returned to Whatley, negligence is presumed. Prime Products, Inc., 97 S.W.3d at 635. Lindeman sought to rebut the presumption with summary judgment evidence that the plane was destroyed by a fire and the cause of the fire was ruled to be undetermined by the fire marshal. Lindeman also presented its owner's deposition testimony speculating as to the cause of the fire. This evidence was insufficient to raise a genuine issue of material fact sufficient to rebut the presumption. A mere showing by the bailee of lack of knowledge of how the fire occurred is not sufficient. Mayhar, 701 S.W.2d at 327. "The general rule is that in order to rebut the presumption of his negligence, the defaulting bailee must show how the loss occurred and that it was due to some other cause than his own neglect or negligence or that, however the loss occurred, it was not due to his negligence." Id. The fire marshal's finding that the source of the fire was "undetermined" is not proof that the fire was caused by someone else's negligence, and in his deposition, Lindeman's owner admits that his testimony regarding the cause of the fire is speculation, which is no evidence. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 164 (Tex. 2004) (noting speculation is not evidence). Accordingly, the trial court properly granted the partial summary judgment in favor of Whatley regarding liability, and Lindeman's issue on cross-appeal is overruled.
Although Lindeman also made an offer of proof at trial regarding the testimony he would elicit from various witnesses regarding the probable cause of the fire and the City's negligence in fighting the fire, this evidence was not presented to the trial court as part of the summary judgment evidence.
Settlement Credit
In his first issue, Whatley contends that Lindeman failed to timely make an election for a dollar-for-dollar settlement credit because the request was not made until after a portion of the closing arguments was completed. In addition, Whatley contends that the trial court erred in determining the amount of the settlement credit.
Lindeman was required to make its election for a dollar-for-dollar settlement "before the issues of the action [were] submitted to the trier of fact." Act of May 4, 1995, 74th Leg., R.S., ch. 136, § 1, 1995 Tex. Gen. Laws 975 (formerly codified as Tex. Civ. Prac. Rem. Code § 33.014), repealed by Act of Sept. 1, 2003, 78th Leg., R.S., ch. 204, § 4.10(6), 2003 Tex. Gen. Laws 859. Whatley relies on case law discussing the timeliness of objections to the jury charge to assert that Lindeman was required to make its election before the jury charge was read. Whatley's reliance is misplaced because the language used in Section 33.014 differs from the language used in Rule 272 of the Texas Rules of Civil Procedure which is the rule governing the cases cited by Whatley. Rule 272 requires objections to the charge to be made "before the charge is read to the jury." Tex. R. Civ. P. 272; Yazdi v. Republic Ins. Co., 935 S.W.2d 875, 878 (Tex.App.-San Antonio 1996, writ denied). Since the language in Section 33.014 differs from the language in Rule 272, the cases cited by Whatley are not controlling.
In Knowlton v. United States Brass Corp., 864 S.W.2d 585, 598 (Tex.App.-Houston [1st Dist.] 1993), aff'd in part and rev'd in part on other grounds, 919 S.W.2d 644 (Tex. 1996), the Houston court determined that the "time of submission" had passed after objections were made to the charge, after the charge was read to the jury, after closing arguments, and after the trial court recessed the proceedings, but before the jury began deliberating. Although the Houston court does not indicate the exact time in this sequence when submission occurred, we hold that for purposes of Section 33.014, the "issues of the action are submitted to the trier of fact" after closing arguments are completed. To hold otherwise would ignore the purpose of closing argument which is to assimilate the evidence to assist the jury in drawing proper conclusions from the evidence. See Gaddis v. State, 753 S.W.2d 396, 398 (Tex.Crim.App. 1988).
With regard to the amount of the settlement credit, a nonsettling party seeking a settlement credit has the burden to prove its right to such credit. Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 927 (Tex. 1998). This burden includes proving the settlement credit amount. Id. The nonsettling party can meet this burden by placing the settlement agreement or some evidence of the settlement amount in the record. Id. If the nonsettling party meets this burden, the burden shifts to the plaintiff to tender evidence allocating the settlement amount applicable to the plaintiff. Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 392 (Tex. 2000). If the plaintiff cannot satisfy this burden, then the nonsettling party is entitled to a credit equaling the entire settlement amount. Ellender, 968 S.W.2d at 928.
The trial court's determination regarding the amount of the settlement credit is reviewed for an abuse of discretion. See Oyster Creek Fin. Corp. v. Richwood Invs. II, Inc., No. 01-02-00788-CV, 2004 WL 1794706, at *15 (Tex.App.-Houston [1st Dist.] Aug 12, 2004, pet. denied); Tex. Capital Sec. Inc. v. Sandefer, 108 S.W.3d 923, 925 (Tex.App.-Texarkana 2003, pet. denied). The test for abuse of discretion is whether the court acted without reference to any guiding rules and principles or, stated another way, whether its decision was arbitrary or unreasonable. City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 757 (Tex. 2003). Weighing the evidence with respect to the amount of the settlement credit involves the exercise of the trial court's discretion, and the trial court will not be held to have abused its discretion if some evidence reasonably supports its decision. Utts v. Short, No. 03-03-00512-CV, 2004 WL 635342, *3-4 (Tex.App.-Austin Apr. 1, 2004, pet. denied).
In this case, Lindeman produced copies of each of the settlement agreements it relied upon for credit. In addition, Lindeman attached a copy of an affidavit from its attorney allocating credit for only a portion of one of the settlements. Although Whatley filed a responsive affidavit setting forth a different allocation, weighing the evidence was within the trial court's discretion. Because evidence was introduced to support the trial court's determination of the amount of the settlement credit, the trial court did not abuse its discretion in finding that the amount of the settlement credit was $106,000.00.
Damages
In his fourth issue, Whatley contends that the jury's answer regarding the value of his plane is not supported by legally or factually sufficient evidence.
When a party attacks the legal sufficiency of an adverse finding on an issue on which he has the burden of proof, he must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Dow Chemical Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). In reviewing a "matter of law" challenge, the reviewing court must first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. Id. If there is no evidence to support the finding, the reviewing court will then examine the entire record to determine if the contrary proposition is established as a matter of law. Id. The point of error should be sustained only if the contrary proposition is conclusively established. Id.
When a party attacks the factual sufficiency of an adverse finding on an issue on which he has the burden of proof, he must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Id. at 242. The court of appeals must consider and weigh all of the evidence, and can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Id.
When the parties introduce conflicting testimony in a jury trial, it is exclusively within the province of the jury to determine the credibility of the witnesses and the relative weight to be afforded to their testimony. Jones v. Tarrant Util. Co., 638 S.W.2d 862, 866 (Tex. 1982); Novosad v. Mid-Century Ins. Co., 881 S.W.2d 546, 548 (Tex.App.-San Antonio 1994, no writ). The jury is free to believe one witness and disregard others. Peterson v. Reyna, 908 S.W.2d 472, 476 (Tex.App.-San Antonio 1995), aff'd as modified on other grounds, 920 S.W.2d 288 (Tex. 1996); Novosad, 881 S.W.2d at 548. As an appellate court, we do not pass on the credibility of the witnesses or the weight given their testimony, and shall afford due deference to the jury's resolution of conflicts of evidence. See Carr v. Jaffe Aircraft Corp., 884 S.W.2d 797, 799, 802-03 (Tex.App.-San Antonio 1994, no writ).
In this case, David Welch, an aircraft sales expert, testified that the value of the plane was approximately $116,292.00, plus an additional $7,000.00 if the plane had new paint and a new interior. Welch also stated that owners are not objective regarding the value of their planes and tend to overestimate the value. Richard Whatley testified that the value of his plane was $157,500.00. Rusty Lindeman testified that the value of the plane was between $95,000.00 and $100,000.00 or approximately $93,500.00 to $94,000.00 if a deduction was made for the unpaid paint job. Lindeman's expert appraiser valued the plane at between $95,000.00 and $96,000.00. The jury found the value of the plane to be $93,334.00. The value was within the range of the testimony, and determining the credibility and weight to be given to the testimony of the witnesses was within the province of the jury. Accordingly, the evidence is legally and factually sufficient to support the jury's finding regarding the value of the plane.
Attorney's Fees
In his second issue, Whatley contends that the jury's finding that $18,600.00 was a reasonable fee for the necessary legal services rendered in the preparation and trial is clearly wrong and against the great weight and preponderance of the evidence. Factors to be considered in determining the amount of attorney's fees to be awarded include: (1) the time and labor required, novelty and difficulty of the question presented, and the skill required; (2) the likelihood that acceptance of employment precluded other employment; (3) the fee customarily charged for similar services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or the circumstances; (6) the nature and length of the professional relationship with the client; (7) the expertise, reputation, and ability of the lawyer performing the services; and (8) whether the fee is fixed or contingent. Arthur Andersen Co. v. Perry Equipment Corporation, 945 S.W.2d 812, 818 (Tex. 1997).
Whatley's contention that the evidence is insufficient to support the attorney's fee award is based on the premise that his attorney's testimony must be accepted as conclusive because his attorney's testimony was the only evidence presented regarding the attorney's fees. Whatley's attorney testified that a fair and reasonable fee would be one-third of "[w]hatever amount that the jury puts down as being the value of the aircraft." The testimony of expert witnesses regarding attorney's fees, however, is not conclusive. CPS Intern., Inc. v. Harris Westmoreland, 784 S.W.2d 538, 541 (Tex.App.-Texarkana 1990, no writ). "It is the province of the jury to weigh testimony of the attorneys as to the value of the services by reference to their nature, as to the time occupied in their performance and other attending circumstances, and by applying their own experience and knowledge of the character of such services." Id. Because the jury was not bound by the testimony of Whatley's attorney, the amount of attorney's fees awarded was within the range of the testimony and supported by sufficient evidence.
Whatley also complains of the jury's failure to award it conditional appellate attorney's fees. A trier of fact, in its discretion, may allow a fee to an attorney for an appeal, but is not required to do so. Hachar v. Hachar, No. 04-03-00840-CV, 2004 WL 2671706, *5 (Tex.App.-San Antonio Nov. 24, 2004, no pet. h.); Neal v. SMC Corp., 99 S.W.3d 813, 818 (Tex.App.-Dallas 2003, no pet.); Anderson, Greenwood Co. v. Martin, 44 S.W.3d 200, 221 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). Accordingly, the jury was not required to award Whatley any appellate attorney's fees.
Prejudgment Interest
Whatley contends that the trial court erred in failing to award prejudgment interest and in the interest rate percentage it applied. Because we have overruled Whatley's issues regarding the amount of the settlement credit and the amount of damages, no reversible error can be shown regarding prejudgment interest since the settlement credit exceeded the damage award.
Evidence of Hull Insurance
Whatley asserts that the trial court erred in admitting evidence of the hull insurance that covered his plane. We review a trial court's admission or exclusion of evidence under an abuse of discretion standard. E.I. du Pont de Nemours Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995). In this case, Lindeman's attorney limited the questions she asked and only sought testimony that Whatley had previously stated the value of the plane to be $72,000.00. Whatley's response disclosed that the statement was made in the context of obtaining insurance. Accordingly, Whatley waived any error in the admission of the evidence. McInnes v. Yamaha Motor Corp., U.S.A., 673 S.W.2d 185, 188 (Tex. 1984) (appellant cannot complain of admission of improper evidence introduced by himself); Johnson v. Coca-Cola Co., 727 S.W.2d 756, 758 (Tex.App.-Dallas 1987, writ ref'd n.r.e.) (same).
Court Costs
In his final issue on appeal, Whatley contends that the trial court erred in failing to award him court costs. Under Rule 131 of the Texas Rules of Civil Procedure, a successful party in a suit is entitled to recover all the taxable costs it incurred. Tex. R. Civ. P. 131. We review a trial court's assessment of court costs under an abuse of discretion standard. Moore v. Trevino, 94 S.W.3d 723, 729 (Tex.App.-San Antonio 2002, pet. denied).
In his motion for judgment, Whatley stated, "By such agreement and allowed credit, no recovery of taxable costs of court, including mediation fees, heretofore incurred by Plaintiff, shall be allowed to the Plaintiff in the trial court." A party that asks for a certain type of relief cannot complain on appeal if that relief is granted, and a party may not secure a reversal for error that it invited. Litton Indus. Prods., Inc. v. Gammage, 668 S.W.2d 319, 321-22 (Tex. 1984); Transcontinental Ins. Co. v. Smith, 135 S.W.3d 831, 839 (Tex.App.-San Antonio 2004, no pet.). Because Whatley asked that no costs be allowed to him, he invited any error in the trial court's failure to award him costs. Accordingly, Whatley's final issue is overruled.
Conclusion
The trial court's judgment is affirmed.