Eduardo Del Bosque v. Juan Barbosa

• Court: Court of Appeals of Texas
• Decided: January 30, 2023
• Docket: 05-22-00230-CV
• Status: Published

Opinion

REVERSE and RENDER; REMAND and Opinion Filed January 30, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00230-CV

EDUARDO DEL BOSQUE, Appellant V. JUAN BARBOSA, Appellee

On Appeal from the 192nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-18-18847

MEMORANDUM OPINION Before Justices Carlyle, Garcia, and Wright1 Opinion by Justice Garcia This appeal arises from a breach of oral contract claim in which the jury

awarded construction cost damages to Eduardo Del Bosque and the trial court

granted Juan Barbosa’s motion for judgment notwithstanding the verdict (“JNOV”).

In a single issue, Del Bosque argues the trial court erred in granting the JNOV

because the evidence was legally sufficient to establish that the construction costs

he incurred were reasonable and necessary. We reverse the trial court’s judgment,

render judgment for Del Bosque consistent with the jury’s verdict, and remand to

1 The Hon. Carolyn Wright, Justice, Assigned the trial court for the limited purpose of determining attorney’s fees and calculating

pre- and post-judgment interest.

I. BACKGROUND

Del Bosque is a veteran contactor with extensive commercial construction

experience. After Barbosa acquired a commercial property, the two entered an oral

contract to construct and operate a restaurant.

Pursuant to the contract, Del Bosque agreed to pay the first $150,000 of

construction costs, and the parties would share all remaining costs equally. Because

Barbosa was serving a federal prison sentence at the time of construction, Del

Bosque advanced all costs necessary to complete the project. When Del Bosque

sought reimbursement, Barbosa denied that the parties had a contract and refused to

pay.

Del Bosque initiated this action against Barbosa, asserting claims for breach

of contract, quantum meruit, and fraud relating to the restaurant property and another

property.2 The breach of contract and quantum meruit claims pertaining to the

restaurant property were tried to a jury. At the close of Del Bosque’s evidence,

Barbosa moved for a directed verdict, arguing there was no evidence that the

construction costs incurred were reasonable and necessary. The trial court denied the

motion.

2 One of the breach of contract counts and the fraud claim pertained to the other property. These claims were resolved by the parties prior to trial. –2– After both sides rested, the case was submitted to the jury. The jury found

that: (i) the parties had entered a contract, (ii) Barbosa breached the contract, (iii)

Barbosa’s performance was not excused, and (iv) Del Bosque suffered damages in

the amount of $117,182.97.

Barbosa moved for JNOV. The trial court granted the motion and rendered a

take-nothing judgment against Del Bosque. Del Bosque now appeals from that

judgment.

II. ANALYSIS

Del Bosque’s sole issue argues the trial court erred in granting the JNOV

because the evidence was legally sufficient to support the jury’s finding that the costs

he incurred were reasonable and necessary and thus recoverable as damages. We

agree.

A trial court may grant a JNOV if there is no evidence to support one or more

of the jury findings on issues necessary to liability. Tiller v. McLure, 121 S.W.3d

709, 713 (Tex. 2003); TEX. R. CIV. P. 301. A trial court’s decision on a JNOV based

on a legal issue is reviewed de novo. See Hall v. Hubco, Inc. 292 S.W.3d 22, 27

(Tex. App.—Houston [14th Dist.] 2006, pet. denied).

When the JNOV is based on a complaint that the evidence is legally

insufficient, we employ the well-settled legal sufficiency or “no evidence” review.

See Tiller, 121 S.W.3d at 713; Helping Hands Home Care, Inc. v. Home Health of

Tarrant Cty., Inc., 393 S.W.3d 492, 515 (Tex. App.—Dallas 2013, pet. denied); see

–3– also City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005) (test for legal

sufficiency is same for directed verdict, JNOV, and appellate no-evidence review).

We credit evidence favoring the jury verdict if reasonable jurors could and disregard

contrary evidence unless reasonable jurors could not. Tanner v. Nationwide Mut.

Fire Ins. Co., 289 S.W.3d 828, 830 (Tex. 2009). We will uphold the jury’s finding

if it is supported by more than a scintilla of competent evidence. Id.

Generally, the evidence is legally insufficient to support a finding and a JNOV

must be granted when the record demonstrates: (1) the complete absence of evidence

on a vital fact; (2) a rule of law or evidence precluded according weight to the only

evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact

amounted to no more than a scintilla; or (4) the evidence conclusively established

the opposite of a vital fact. See City of Keller, 168 S.W.3d. at 810–11. The final test

for legal sufficiency must always be whether the evidence at trial would enable

reasonable and fair-minded people to reach the verdict under review. City of Keller,

168 S.W.3d at 827.

To prevail on his breach of contract claim, Del Bosque was required to prove:

(i) the existence of a valid contract, (ii) that he performed, (iii) Barbosa breached the

contract, and (iv) Del Bosque suffered damages resulting from the breach. See

Barnett v. Coppell North Texas Court, Ltd., 123 S.W.3d 804, 815 (Tex. App.—

Dallas 2004, pet. denied). The jury found there was a contract that was breached.

The damages element is at issue here.

–4– The damages question in the jury charge asked the jury to find:

What sum of money, if any, if paid now in cash, would fairly and reasonably compensate Plaintiff for his damages, if any, that resulted from such failure to comply?

Consider the following elements of damages, if any, and none other: the reasonable and necessary expenses incurred by Plaintiff to construct the restaurant in DeSoto, Texas.

Answer in dollars and cents, if any.

In response, the jury found that Del Bosque incurred damages in the amount of

$117,182.97. Our review centers on whether there is sufficient evidence of probative

force to establish that Del Bosque’s expenses were reasonably and necessarily

incurred.

Parties generally have the freedom to choose to pay unreasonably high prices

for goods and services. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 129

(Tex. 2004). To recover remedial damages, however, a party must prove that

expenditures are reasonable and necessary. See Mustang Pipeline Co. v. Driver

Pipeline Co., 134 S.W.3d 196, 200 (Tex. 2004) (per curiam); McGinty v. Hennen,

372 S.W.3d 625 (Tex. 2012).

Here, Del Bosque told the jury that he has over twenty-five years’ experience

in commercial construction and has completed many buildings. He has an

unimpeachable professional history of honesty and competence. He has never been

sued for improper or deficient work.

–5– Del Bosque said that he personally inspected the premises, evaluated the state

of construction, assessed whether prior work performed at the premises could be

utilized, determined what future work was needed, and personally supervised

construction of the project. He initially estimated that $390,000-$400,000 would be

required to construct the restaurant. Del Bosque explained that he was to be

responsible for the first $150,000 in expenses, and then the parties were to split the

remaining costs.

The invoices and receipts for the construction expenses were admitted into

evidence and reflect that ultimately, Del Bosque’s out-of-pocket costs were

$430,000. Del Bosque paid those costs and expected reimbursement in accordance

with the parties’ agreement.

Although Barbosa had done some work on the property before Del Bosque

began, when Del Bosque first viewed the property, “everything was demolished and

destroyed.” In fact, other than the windows, Del Bosque was unable to use any of

the work Barbosa had done. For example, Del Bosque explained that the wall for the

grill was defective and had to be re-done.

The 375 pages of detailed, dated invoices introduced into evidence further

detail the expenditures. The invoices reflect charges for glass door installation for

the main store front and drive-through, signage, roofing supplies, lumber, concrete,

flooring, a water filtration system and numerous other installation materials and

construction supplies. There are also invoices for stucco work, concrete removal,

–6– and welding, and a portable toilet service for the job site. Other invoices reflect

purchases for restaurant equipment, including worktables, shelving and racks,

refrigeration and storage units, fryers, and cabinets. Thus, the jury was able to see

what was done, and could reasonably conclude that the invoices reflected costs and

materials necessary for the completion of a restaurant. Cf. Hanna v. Williams, No.

03-22-00254-CV, 2022 WL 17490996, at *10 (Tex. App—Austin Dec. 7, 2022, no

pet. h) (attorney billing records must contain enough detail to allow a factfinder to

determine whether work performed was reasonable and necessary); Rohrmoos

Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 502 (Tex. 2019) (attorney

billing records are strongly encouraged to prove reasonableness and necessity of fees

when those elements are contested). Moreover, none of the details provided in the

invoices and billing records were challenged.

In the present case, no witness explicitly testified that the expenses incurred

were reasonable and necessary, but the parties agree that a plaintiff need not use

these magic words to establish the right to recover costs. See Executive Taxi/Golden

Cab v. Abdelillah, No. 05-03-01451-CV, 2004 WL 1663980, at *4 (Tex. App.—

Dallas July 19, 2004, pet. denied) (mem. op.); CCC Group, Inc. v. South Cent.

Cement, Ltd., 450 S.W.3d 191, 200 (Tex. App.—Houston [1st Dist.] 2014, no pet.).

But Barbosa’s counsel acknowledged during oral argument that if Del Bosque had

testified that the expenses were “reasonable” and “necessary,” it would have

–7– rendered the evidence sufficient to support the verdict. This is indicative of the

relative strength of the evidence at issue here.

Del Bosque argues that there was no incentive for him to inflate costs because

of the parties’ agreement that he would be responsible for half after his $150,000

initial outlay. We agree that the jury could reasonably draw this inference from the

evidence. See City of Keller, 168 S.W.3d at 822 (indulging every reasonable

inference to support the verdict).

Del Bosque also relies on Barbosa’s testimony to argue there was sufficient

evidence to support the verdict. Specifically, Barbosa testified, based on his review

of the receipts provided in the case, that it would cost between $200,00 and $300,000

to complete the project. When a damage award falls within range of costs testified

to by each side, such testimony is some evidence supporting a jury award for the

reasonable and necessary cost of repairs. See Hernandez v. Lautensack, 201 S.W.3d

771, 777 (Tex. App.—Fort Worth 2006, pet. denied). Indeed, the jury’s verdict of

$117,182.97 comports with the jury having credited this evidence based on the set-

off for Barbosa’s initial investment.

A factfinder has discretion to award damages within the range of evidence

presented at trial. Gulf States Utils. Co. v. Low, 79 S.W.3d 561, 566 (Tex. 2002);

Basic Cap. Mgmt., Inc. v. Dynex Comm. Inc., 402 S.W.3d 257, 265 (Tex. App.—

Dallas 2013, pet. denied). Here, Del Bosque spent approximately $430,000 to

complete the restaurant. Deducting Del Bosque’s agreed-upon $150,000 initial

–8– outlay leaves $240,000 to be split between the parties, and Del Bosque’s share of

that would be $120,000. The jury awarded Del Bosque $117,182.97. There is a

rational basis for this award. See Low, 79 S.W.3d at 566. Further, the jury’s precise

damage calculation suggests they had adequate information to determine which

expenses they deemed reasonable and necessary.

Jury verdicts are sacrosanct. See Herbert v. Herbert, 754 S.W.2d 141, 143

(Tex. 1988) (recognizing “the sanctity to which a jury verdict is entitled.”). Although

there are certain narrow procedural vehicles for challenging a verdict, appellate

courts should be reluctant to disturb verdicts unless required by law. See McWhorter

v. Humphries, 161 S.W.2d 304, 308 (Tex. App.—Texarkana 1941, writ ref’d n.r.m.);

Southern States Life Ins. Co. v. Watkins, 180 S.W.2d 977, 979 (Tex. App.—Dallas

1944, no writ). Accordingly, guided by the standard of review, we navigate the close

call here with the appropriate deference to the jury’s verdict. See generally, City of

Keller, 168 S.W.3d at 822 (indulging every reasonable inference to support verdict);

Randall v. Walker, No. 03-15-00317, 2017 WL 1404727, at *2 (Tex. App.—Austin

Apr. 13, 2017, no pet.) (appellate courts reverse JNOV if more than a scintilla of

evidence supports jury’s findings).

On this record and under the circumstances present here, the evidence was

sufficient for a reasonable and fair-minded jury to rationally conclude that Del

Bosque was entitled to recover $117, 182.97 for expenses reasonably and necessarily

incurred to construct the restaurant. See City of Keller, 168 S.W.3d at 810–811.

–9– Therefore, the trial court erred in granting the JNOV. Del Bosque’s issue is

sustained.

III. CONCLUSION

When a trial court erroneously grants a JNOV on a specified basis and an

appellate court concludes the ruling was erroneous, the proper disposition is to

reverse and render judgment in harmony with the jury’s verdict. See Sw. Galvanizing

Inc. v. Eagle Fabricators, Inc., 383 S.W.3d 677, 681 (Tex. App.—Houston [14th

Dist.] 2012, no pet.). Accordingly, we reverse the trial court’s judgment, render

judgment reinstating the jury’s verdict for damages in the amount of $117,182.97,

and remand to the trial court for the limited purpose of determining attorney’s fees

and calculating pre- and post-judgment interest as allowed by law.

/Dennise Garcia/ DENNISE GARCIA JUSTICE

220230F.P05

–10– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

EDUARDO DEL BOSQUE, On Appeal from the 192nd Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. DC-18-18847. No. 05-22-00230-CV V. Opinion delivered by Justice Garcia. Justices Carlyle and Wright JUAN BARBOSA, Appellee participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is REVERSED and judgment is RENDERED that the jury’s verdict awarding Del Bosque $117,182.97 is reinstated. The case is REMANDED to the trial court for the limited purpose of determining attorney’s fees and calculating pre-and post-judgment interest.

It is ORDERED that appellant EDUARDO DEL BOSQUE recover his costs of this appeal from appellee JUAN BARBOSA.

Judgment entered this 30th day of January 2023.

–11–