McDaniel v. Bennett

295 S.W.3d 675, 2008 Tex. App. LEXIS 4587, 2008 WL 1903453
CourtCourt of Appeals of Texas
DecidedJune 20, 2008
Docket07-06-0250-CV
StatusPublished
Cited by1 cases

This text of 295 S.W.3d 675 (McDaniel v. Bennett) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McDaniel v. Bennett, 295 S.W.3d 675, 2008 Tex. App. LEXIS 4587, 2008 WL 1903453 (Tex. Ct. App. 2008).

Opinions

MEMORANDUM OPINION

JAMES T. CAMPBELL, Justice.

This is a restricted appeal from a post-answer default judgment granted against appellant, Richard McDaniel, individually and d/b/a Richard McDaniel, Inc., d/b/a B.R. Roofing, a/k/a B & R Roofing (“McDaniel”), and in favor of appellees, Benny Bennett and his wife Mary Bennett. Finding the Bennetts’ evidence of damages was legally insufficient, we will reverse and render judgment.

In their suit, the Bennetts alleged McDaniel failed to properly perform agreed repairs to the roof of their home, and asserted claims of violation of the Texas Consumer Protection-Deceptive Trade Practices Act,1 breach of contract, breach of implied warranty to repair in a good and workmanlike manner, and fraud. The Bennetts sought actual damages of $7,500 as well as additional damages, exemplary damages, and attorney’s fees.

The case was tried to the court. Although McDaniel had filed an answer,2 when the case was called for trial he did not appear. The Bennetts presented their evidence through the testimony of Mary [678]*678Bennett. The trial court found for the Bennetts on their theories and signed a judgment labeled “Default Judgment” awarding them actual damages of $7,500, exemplary damages of $10,000 and attorney’s fees of $1,500.

McDaniel filed this restricted appeal. Tex.R.App. P. 30. He presents two issues on appeal. By his first issue, he argues there was no evidence he received notice of the trial setting. In his second issue, he challenges the legal and factual sufficiency of the evidence supporting each of the Bennetts’ theories of recovery as well as the awards in their favor of exemplary damages and attorney’s fees.

We turn first to McDaniel’s legal sufficiency challenge because if this issue is sustained we are required to render judgment in McDaniel’s favor. See Horrocks v. Texas Dep’t of Transp., 852 S.W.2d 498, 499 (Tex.1993) (citing National Life & Accident Ins. Co. v. Blagg, 438 S.W.2d 905, 909 (Tex.1969)). A restricted appeal may include review of legal and factual sufficiency claims. Norman Communications v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex.1997) (applying prior rule).

In determining the legal sufficiency of the evidence, we consider all the evidence in the light most favorable to the challenged finding, crediting favorable evidence if a reasonable fact-finder could, and disregarding contrary evidence unless a reasonable fact-finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 809 (Tex.2005). If more than a scintilla of evidence supports the challenged finding it will be upheld. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499, (Tex.1995); see also City of Keller, 168 S.W.3d at 813-14. More than a scintilla of evidence exists if the evidence supporting the finding, as a whole, “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Burroughs, 907 S.W.2d at 499 (quoting Transp. Ins. Co. v. Monel, 879 S.W.2d 10, 25 (Tex.1994)); see also City of Keller, 168 S.W.3d at 822.

When the defendant fails to appear at trial after filing an answer, the plaintiff shoulders the burden of proof on each element of its case because a defendant admits nothing by making a post-answer default. Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex.1979). A post-answer default constitutes neither an abandonment of the defendant’s answer nor an implied confession of any issues thus joined by the defendant’s answer. Judgment cannot be entered on the pleadings; rather, the plaintiff in such cases must offer evidence and prove its case. Id.; Sharif v. Par Tech, Inc., 135 S.W.3d 869, 872-73 (Tex.App.-Houston [1st Dist.] 2004, no pet.).

Thus, for each theory of recovery they alleged, it was for the Bennetts to offer sufficient evidence of actual damages. McDaniel argues the Bennetts introduced no competent evidence of actual damages. We agree. As noted, Mrs. Bennett was the trial witness. The only evidence in the record bearing on damages comes from her testimony. In response to leading questions, she agreed that McDaniel used “excessively long nails” driving them “anywhere from an inch to two inches” through the roof decking with such force that “it broke the boards and the decking underneath the roofing material.” She also agreed that the roof would “ultimately” leak without replacement of the decking. There also was testimony of a repair estimate the Bennetts obtained.

Q. But his — his estimate was for 70— approximately 72 or $7300.00, wasn’t it—
A. Yes, sir.
[679]*679Q. — to replace the actual decking underneath the roof and you’re going to actually have to replace the roofing material to do that; is that correct?
A. Yes, sir.

The repair estimate does not appear in the record.

The other mention of actual damages occurred through the following exchange between Mrs. Bennett and counsel.

Q. And we’ve alleged that you’ve got-you received actual damages of $7500.00 to repair—
A. Yes, sir.
Q. — this roof?

The Bennetts sought the cost to repair their roof. A party seeking damages measured by the cost of repair must present competent evidence justifying a finding by the trier of fact that the repairs are necessary to restore the property to its former condition and that the cost of repairs is reasonable and fair. Executive Taxi/Golden Cab v. Abdelillah, No. 05-03-01451-CV, 2004 WL 1663980 at *1, 2004 Tex.App. Lexis 6422 at *3 (Tex.App.-Dallas July 19, 2004, pet. denied) (mem.op.); Liptak v. Pensabene, 736 S.W.2d 953, 958 (Tex.App.-Tyler 1987, no writ). A witness need not utter the words “reasonable” and “necessary” so long as sufficient evidence exists for the trier of fact to conclude that the repairs are necessary and the cost is reasonable. Abdelillah, 2004 WL 1663980 at *1, 2004 Tex.App. Lexis 6422 at *3; 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). However, an estimate without the testimony of the person who created the estimate or other expert testimony is no evidence of the necessity of the repair or the reasonableness of the cost of the repair. Abdelillah, 2004 WL 1663980 at *1, 2004 Tex.App.

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McDaniel v. Bennett
295 S.W.3d 675 (Court of Appeals of Texas, 2008)

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Bluebook (online)
295 S.W.3d 675, 2008 Tex. App. LEXIS 4587, 2008 WL 1903453, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdaniel-v-bennett-texapp-2008.