Moren v. Pruske

570 S.W.2d 442, 1978 Tex. App. LEXIS 3625
Court of Appeals of Texas·Decided July 31, 1978·No. 15957·Published·Cited by 11 cases

Opinion

OPINION

MURRAY, Justice.

Defendant below appeals from a judgment rendered after a trial before a jury, and we will designate the parties as they appeared in the trial court. Plaintiff, as lessor, and defendant, as lessee, entered into a written lease agreement concerning certain warehouse space in Bexar County, Texas. The lease, which was for an initial two-year period, was executed on July 6, 1971, and defendant exercised his additional two-year option, and finally surrendered the premises on or about June 30, 1975. Plaintiff alleged that defendant, at the expiration of the lease term, delivered the premises to plaintiff in a damaged condition and that the reasonable cost of repair of such premises was the sum of $26,430. Plaintiff seeks additional damages for lost rentals due to the condition of the premises. The defendant denied that the plaintiff had suffered any damages and, further, that any issue in this suit has or should have been litigated in a prior suit between the same parties.

At the close of the evidence, the court submitted, among others, the following questions, and the jury made the following answers:

ISSUE NO. 2
Do you find from a preponderance of the evidence that plaintiff suffered financial loss as a result of the condition of the premises when they were delivered?
Answer “We do” or “We do not”.
Answer: We do
ISSUE NO. 3
What amount of financial loss did Plaintiff, Pruske, suffer as a result thereof?
Answer in dollars and cents, if any.
Answer: $17.500.00
ISSUE NO. 4
Do you find from a preponderance of the evidence that such condition rendered the premises unsuitable for occupancy by other prospective tenants immediately after Defendant Moren vacated them?
Answer “We do” or “We do not”.
Answer: We do
ISSUE NO. 5
Do you find from a preponderance of the evidence that Plaintiff, Alfred D. Pruske, used due diligence in attempting to lease the premises immediately after Defendant, Clayton E. Moren, vacated them?
Answer “We do” or “We do not”.
Answer: We do
ISSUE NO. 6
What amount of financial loss did Plaintiff Pruske suffer as a result of being unable to lease the premises immediately after they were vacated by Defendant, Clayton E. Moren?
Answer in dollars and cents, if any.
Answer: $2400.00

This case was tried to a jury in May of 1977 and therefore a motion for new trial was a prerequisite to appeal. Tex.R.Civ.P. 324 (1977). Proper assignments of error in the motion for new trial are necessary conditions to the right to complain on appeal. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960); Sumners Road Boring, Inc. v. Thompson, 393 S.W.2d 690 (Tex.Civ.App.—Corpus Christi 1965, writ ref’d n. r. e.).

*444 We have carefully examined defendant’s amended motion for new trial and defendant’s ten points of error as set out in his brief and find that only Point of Error No. IV is supported by a point in his amended motion for new trial. Defendant’s Point of Error No. IV states:

THE TRIAL COURT ERRED IN ENTERING JUDGMENT UPON SPECIAL ISSUE NO. THREE AND THE FINDING THEREON AND IN OVERRULING THE AMENDED MOTION FOR NEW TRIAL, BECAUSE THERE IS INSUFFICIENT EVIDENCE TO SUPPORT SUCH FINDING, AND SUCH FINDING IS SO CONTRARY TO THE GREAT WEIGHT AND PREPONDERANCE OF THE EVIDENCE AS TO BE MANIFESTLY UNJUST.

Paragraph II. of defendant’s Amended Motion for New Trial states:

The Court erred in failing to set aside the jury demand for damages as set forth and provided in Vernon’s Annotated Rules of Civil Procedure, Rule 328, such award being grossly and manifestly excessive when compared to the weight and sufficiency of evidence. That such award was insufficiently supported by the finding and was so against the overwhelming weight and preponderance of evidence as to be manifestly wrong.

We overrule this point of error. The testimony in this case lasted over a period of seven days. Most of this testimony pertained to the nature and extent of the damages, the type of repairs required, the estimated costs of repairs, and the actual cost of repairs. We agree with defendant’s counsel in this statement:

The record in this case consists of seven separate bound volumes of testimony and 159 exhibits. The great bulk of the record is concerned, in excruciating detail, with the nature and extent of claimed damages and repairs thereto.

The proper measure of damages where the injury to realty is repairable is the reasonable cost of repairs necessary to restore the property to its prior condition. Pasadena State Bank v. Isaac, 149 Tex. 47, 228 S.W.2d 127 (1950); Weaver Construction Co. v. Rapier, 448 S.W.2d 702 (Tex.Civ.App.—Dallas 1969, no writ). It is defendant’s position that the word “reasonable” must appear in the testimony of an expert witness and it is apparent from the record that this word was not used. We agree with plaintiff that reasonableness can be inferred from the evidence. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (1958); Ice Service Company v. Scruggs, 284 S.W.2d 185 (Tex.Civ.App.—Fort Worth 1955, writ ref’d n. r. e.); 23 Tex.Jur.2d Evidence § 65 (1961). In Lynch, the Supreme Court said, at page 276:

The jury is thus not only the judge of the facts and circumstances proven but may also draw reasonable inferences and deductions from the evidence adduced before it. Its findings may not be disregarded under the provisions of Rule 301, therefore, if the record discloses any evidence of probative value which, with inferences that may be properly drawn therefrom, will reasonably support the same.

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Moren v. Pruske, 570 S.W.2d 442, 1978 Tex. App. LEXIS 3625 (Tex. Ct. App. 1978).

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