Southwind Aviation, Inc. v. Avendano

776 S.W.2d 734, 1989 Tex. App. LEXIS 2296, 1989 WL 99882
CourtCourt of Appeals of Texas
DecidedAugust 31, 1989
Docket13-88-292-CV
StatusPublished
Cited by12 cases

This text of 776 S.W.2d 734 (Southwind Aviation, Inc. v. Avendano) 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
Southwind Aviation, Inc. v. Avendano, 776 S.W.2d 734, 1989 Tex. App. LEXIS 2296, 1989 WL 99882 (Tex. Ct. App. 1989).

Opinion

OPINION

KENNEDY, Justice.

This is an appeal from a jury verdict returned in favor of appellee, Victor Aven-dano, arising out of the repair of an airplane by appellants, Southwind Aviation, Inc. and Aviation Enterprises, Inc. For the purpose of this appeal, Southwind Aviation, Inc. and Aviation Enterprises, Inc. will be considered one and the same and referred to as “appellants.” The appellants were found jointly and severally liable. The trial court’s judgment awarded appellee $18,872 in damages. We affirm the judgment.

Appellee delivered his damaged Cessna 210 aircraft to appellants for an estimate of the cost of repairs necessary to render it airworthy. Appellants tendered a written estimate of repairs dated July 17, 1984. The estimate recited that it was valid for 20 days. The relevant terms of the estimate follow:

(1) appellants will supply all parts and supplies necessary for repairs; (2) the airplane will be delivered in an airworthy condition; (3) the cost of repairs will be $25,000 plus 15% for hidden damage to the airframe and an additional unknown sum in the event of internal engine damage not apparent at the time of inspection; 1 (4) estimated time for completion of repairs is six months; (5) appellants will require fifty percent of repair cost in advance.

On July 19, 1984, appellee accepted these terms and tendered $12,500 to appellants. The record shows that Mr. Steenbock, vice-president of appellants, subsequently requested that appellee purchase, at appellants’ direction, some of the parts and pay for some of the outside repairs directly “so that we [appellants] would not get more *736 capital involved into a job that we were doing on a part-time basis, [a]nd we would not have to charge them [appellee] any markup on the parts.” During trial, appel-lee testified that the appellants told him that his expenditures in this regard would be credited to his account. Appellee also testified that he had spent $19,622 in parts and outside repairs at appellants’ request.

After the six months had expired, appel-lee made repeated and regular inquiries about the progress of repairs. Between February 1986 and August 1986, appellee requested “around ten times” that his airplane be returned to him. Each time, appellants apologized and requested additional time to complete the repairs (“two more weeks, three more weeks, one more month”, “several more weeks, several more days”). Eventually appellee refused to acquiesce to appellants’ requests for extension, and he demanded possession of his aircraft. Appellants responded by refusing to surrender possession of the aircraft until appellee tendered to appellants an additional $13,057. On August 6, 1986, appellee filed this suit alleging, in part, breach of contract, conversion and violation of the Texas Deceptive Trade Practices Act.

By their first three points of error, appellants complain that appellee failed to offer evidence of the “reasonableness” of the purchase price paid by appellee for parts and outside repairs which, under the oral agreement, was to be credited to his account. Appellants cite several cases in which Texas courts have held that a party seeking recovery for the cost of repairs to damaged property or expenses incurred for the treatment of personal injuries must put forth evidence of the reasonableness of such expenses. Ashley v. Bizzell, 694 S.W.2d 349, 362-353 (Tex.App.—San Antonio 1985, writ ref’d n.r.e.); GATX Tank Erection v. Tesoro Petroleum Corp., 693 S.W.2d 617, 619 (Tex.App.—San Antonio 1985, writ ref’d n.r.e.). However, appellants have misconstrued the term “repairs” in the description of appellee’s expenditures and presumed that the expenses incurred by appellee are the same as those in the cited cases, i.e., where expenses were incurred as a consequence of the defendant’s wrong.

Appellee was not introducing evidence of the cost or expense to repair damage to his property as the consequence of appellants wrongful act but was introducing evidence of his direct damages arising from his compliance with the terms of the oral agreement in which he was to make these expenditures. The facts before us are distinguishable from the cases cited to us by appellants.

Because judgment was entered for appellee on his claim under the Texas Deceptive Trade Practices Act, Tex.Bus. & Comm.Code Ann. sec. 17.41 — 17.63 (Vernon 1987) (“DTPA”), appellants cite Jacobs v. Danny Darby Real Estate, 750 S.W.2d 174 (Tex.1988), a case where the consumer successfully established that his expenses were reasonable and necessary. In Jacobs, the Supreme Court found sufficient evidence that the plaintiff/consumer’s expenses were reasonable and necessary; however, the Court expressly refused to decide whether, under the DTPA, proof of reasonableness and necessity are required at all. Like the other cases cited to us by appellants, the Jacobs case is distinguishable from our facts in that Mr. Jacobs was seeking reimbursement for his expenses made in reliance upon the defendant’s misrepresentation. These expenses were incurred as a consequence of the defendant’s misrepresentation. Mr. Jacobs was not expending sums of money at the defendant’s express request pursuant to an oral agreement. Therein lies the distinction; under our facts, appellee’s expenses were direct damages incurred in performance of the contract. In the case of direct damages, the law necessarily imposes the measure whether or not the defaulting party possessed any knowledge whatever of the implied and natural consequences of the breach or the amount the party would suffer on account of such breach. American Bank of Waco v. Thompson, 660 S.W.2d 831, 834 (Tex.App.—Waco 1983, writ ref’d n.r.e.). Appellee’s direct damages are recoverable without evidence of reasonableness. Moreover, because appellee was spe *737 cifically instructed by appellants to make these expenditures, we find appellants’ complaint of appellee’s failure to present evidence regarding the reasonableness of these expenditures without merit. See generally Donaldson v. Lake Vista Community Improvement Association, 718 S.W.2d 815, 817-818 (Tex.App.—Corpus Christi 1986, writ ref’d n.r.e.) (delineating the requisites of promissory estoppel). Appellant’s first three points of error are overruled.

By their fourth point of error, appellants complain that the trial court erred in awarding appellee $5,000 in damages for the conversion action as well as possession of his aircraft. Appellants contend that this award amounts to a double recovery for appellee.

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Bluebook (online)
776 S.W.2d 734, 1989 Tex. App. LEXIS 2296, 1989 WL 99882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/southwind-aviation-inc-v-avendano-texapp-1989.