Texas Causes of Action & Affirmative Defenses

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Thursday, August 4, 2011

Can home owner offer valid testimony on reasonable cost or value of repairs?

  
Testimony to support or challenge reasonble and necessary & costs of repair: Exception to the Property Owner Rule

Eastland Court of Appeals says property owners not qualified to opine on repair cost even if qualified to offer opinion on the value of the property itself under the property owner rule; Rule does not cover repairs; expert testimony it therefore required.    
A party seeking to recover damages measured by the cost of repair must present competent evidence so that the trier of fact is justified in finding that the repairs are necessary to restore the property to its former condition and that the cost of repairs is reasonable and fair. See Hernandez v. Lautensack, 201 S.W.3d 771, 776-77 (Tex. App.—Fort Worth 2006, pet. denied); Ebby Halliday Real Estate, Inc. v. Murnan, 916 S.W.2d 585, 589 (Tex. App.—Fort Worth 1996, writ denied); Liptak v. Pensabene, 736 S.W.2d 953, 958 (Tex. App.—Tyler 1987, no writ). The magic words “reasonable” and “necessary” need not be used as long as there is sufficient evidence for the trier of fact to conclude that the repairs are necessary and the cost is reasonable. 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).

Some courts have held that evidence pertaining to the necessity and reasonableness of repair costs falls within the exclusive domain of an expert. See Legacy Motors, LLC v. Bonham, No. 02-07-00065-CV, 2007 WL 2693863, at *4 (Tex. App.—Fort Worth Sept. 13, 2007, no pet.) (mem. op.); Ha v. W. Houston Infiniti, Inc., No. 01-94-00884-CV, 1995 WL 516993, at *2 (Tex. App.—Houston [1st Dist.] Aug. 31, 1995, writ denied) (op. on reh’g) (not designated for publication); see also Executive Taxi/Golden Cab v. Abdelillah, No. 05-03-01451-CV, 2004 WL 1663980, at *1 (Tex. App.—Dallas July 19, 2004, pet. denied) (mem. op.) (stating that an estimate without the testimony of the person making the estimate or other expert testimony is no evidence of the necessity of the repair or the reasonableness of the costs of the repair) (citing Jordan Ford, Inc. v. Alsbury, 625 S.W.2d 1, 3 (Tex. Civ. App.—San Antonio 1981, no writ)). As a general rule, matters involving specialized or technical knowledge require expert testimony. See FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84, 90-91 (Tex. 2004). The necessity of subsequent, total roof replacements performed immediately after the work performed by and on behalf of Wortham Bros. and the reasonableness of the cost of the subsequent roof replacements are matters of a specialized and technical nature. Accordingly, we conclude that expert testimony was required to establish the necessity and reasonableness of the subsequent roof replacements.

We disagree with the trial court’s determination that the Haffners’ status as property owners qualifies them to offer an opinion on the necessity and reasonableness of repair costs. Under the “Property Owner Rule,” a property owner is generally qualified to testify as to the value of his or her property even if he or she is not an expert and would not be qualified to testify as to the value of other property. Reid Road Mun. Util. Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 337 S.W.3d 846, 852-53 (Tex. 2011); see Porras v. Craig, 675 S.W.2d 503, 504 (Tex. 1984). This rule is based on the presumption that an owner will be familiar with his or her own property and know its value. Reid Road Mun. Util. Dist. No. 2, 337 S.W.3d at 853. This presumption does not extend to the reasonable cost of repairing the owner’s property particularly when those repairs are of a technical or specialized nature.

SOURCE: Eastland Court of Appeals - 11-09-00190-CV - 7/28/11

We disagree with the trial court’s determination that the Haffners’ status as property owners qualifies them to offer an opinion on the necessity and reasonableness of repair costs. Under the “Property Owner Rule,” a property owner is generally qualified to testify as to the value of his or her property even if he or she is not an expert and would not be qualified to testify as to the value of other property. Reid Road Mun. Util. Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 337 S.W.3d 846, 852-53 (Tex. 2011); see Porras v. Craig, 675 S.W.2d 503, 504 (Tex. 1984). This rule is based on the presumption that an owner will be familiar with his or her own property and know its value. Reid Road Mun. Util. Dist. No. 2, 337 S.W.3d at 853. This presumption does not extend to the reasonable cost of repairing the owner’s property particularly when those repairs are of a technical or specialized nature.


The [ Home Owners ] presented a great deal of evidence to support the trial court’s findings that the roof repairs performed by or on behalf of Wortham Bros. were deficient. Thus, the record contains evidence of the necessity of some subsequent repairs. However, there is no expert testimony that the roofing work by Wortham Bros. had to be completely removed and replaced. Furthermore, there is no competent evidence of the reasonableness of the costs of the subsequent roofing work performed by Campbell Construction and Roofing. In this regard, the [ Home Owners ]’ testimony regarding the costs of the subsequent roofing work does not constitute evidence of the reasonableness of those costs.

The [ Home Owners ] cite McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986), for the proposition that a factfinder can form its own opinion on damages based upon its own experience and common experience. An expert in McGalliard testified that the cost necessary to sufficiently repair a home would be $113,088.31. 722 S.W.2d at 696. However, the trial court, sitting as the factfinder, only awarded actual damages of $12,500. Id. at 695. The intermediate court of appeals modified the trial court’s damage award to $113,088.31 on the basis that the expert’s damage testimony was uncontroverted. Id. at 696. The supreme court reversed the intermediate court of appeals on the rationale that expert testimony does not establish any material fact as a matter of law even if the expert testimony is uncontroverted. Id. at 697. The supreme court held that the trier of fact is afforded considerable discretion in evaluating opinion testimony from an expert on the issue of damages. Thus, the holding in McGalliard applies to a situation where the factfinder awards a lesser amount of damages than indicated by the evidence. It does not stand for the proposition that the factfinder may award damages for the cost of repairs based upon its own experience and knowledge in the absence of competent evidence of damages.[2]

The [ Home Owners ] cite Terminix Int’l, Inc. v. Lucci, 670 S.W.2d 657, 664 (Tex. App.—San Antonio 1984, writ ref’d n.r.e.), in support of their contention that a homeowner may testify as to the reasonable cost of home repairs. The repairs at issue in Terminix constituted $50 for supplies used to make stop-gap, remedial repairs in the face of termite damage. 670 S.W.2d at 664. De minimis repairs of this nature are much different than the replacement of two recently installed roofs at a cost of several thousand dollars.

Lastly, the [ Home Owners ] contend that David Wortham of Wortham Bros. testified that the repair costs charged by Campbell Construction and Roofing were reasonable. We disagree with this reading of Wortham’s testimony. The [ Home Owners ]’ attorney first asked Wortham if the amounts charged by Wortham Bros. were “fair and reasonable.” Wortham replied to this question by stating: “All I can answer is that it was per contract.” Counsel then asked Wortham if the amounts charged by Campbell Construction and Roofing were fair and reasonable. Wortham responded on multiple occasions that it would be hard for him to evaluate the amounts charged by Campbell Construction and Roofing because of the increased costs of roofing materials. In one instance, counsel asked Wortham if the amounts charged by Campbell Construction and Roofing “run the same as what your bid is, then you would assume it to be a fair price because you guys would not be charging something that is not fair, would you?” Wortham replied by saying: “I will go with that.” This statement is simply too vague and indefinite to constitute evidence of the reasonableness of the repair costs charged by Campbell Construction and Roofing.

In the absence of evidence regarding the necessity of the subsequent, total roof replacements and the reasonableness of their costs, there is no evidence to support the trial court’s finding of actual damages. Appellant’s first issue is sustained. As noted previously, we need not address the remaining issues because of our disposition of the first issue.
This Court’s Ruling

The judgment of the trial court is reversed, and judgment is rendered in favor of Wortham Bros., Inc.

SOURCE: Eastland Court of Appeals - 11-09-00190-CV - 7/28/11

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