Case Number CV IN THE COURT OF APPEALS FOR THE FIFTH JUDICIAL DISTRICT OF TEXAS. at Dallas, Texas. Appellant, ANDRES DIAZ Appellee.

Transcription

1 Case Number CV IN THE COURT OF APPEALS FOR THE FIFTH JUDICIAL DISTRICT OF TEXAS at Dallas, Texas ACCEPTED 225EFJ FIFTH COURT OF APPEALS DALLAS, TEXAS 12 June 21 P3:39 Lisa Matz ORAL ARGUMENT REQUESTED CLERK CAROLINE CULWELL Appellant, v. ANDRES DIAZ Appellee. rd On Appeal from DC Pending in the 193 Judicial District Court of Dallas County, Texas, the Honorable Carl H. Ginsberg Presiding BRIEF OF APPELLANT CAROLINE CULWELL WALTERS, BALIDO & CRAIN, L.L.P. Gregory R. Ave State Bar No Jason L. Wren State Bar No Jay R. Harris State Bar No Jackson Street, Suite 600 Dallas, Texas Telephone Number (214) Facsimile Number (214) ATTORNEYS FOR APPELLANT June 21, 2012 CAROLINE CULWELL

2 LIST OF PARTIES AND THEIR COUNSEL Pursuant to Texas Rule of Appellate Procedure 38.1(a) and 38.2(a)(1)(A), the following are the parties to the trial court s final judgment being appealed and their counsel: 1. Appellant Caroline Culwell; 2. Counsel for Appellant Gregory R. Ave (appellate counsel) Jason Wren (appellate counsel) Jay R. Harris (appellate counsel) Ashley de la Cerda (trial counsel) Walters, Balido & Crain, L.L.P. Founders Square 900 Jackson Street, Suite 600 Dallas, Texas 75202; 3. Appellee Andres Diaz; 4. Counsel for Appellee James W. Mills The Mills Lawfirm 8333 Douglas Avenue, Suite 1000 Dallas, Texas 75115; and 5. Trial Judge The Honorable Carl H. Ginsberg, Presiding rd Judge of the 193 Judicial District Court in and for Dallas County, Texas. For clarity and convenience, Appellant Caroline Culwell, will be referred to as Culwell; Appellee Andres Diaz will be referred to as Diaz; and the Honorable rd Carl H. Ginsberg, Presiding Judge of the 193 Judicial District Court of Dallas County, Texas, will be referred to as the trial court. i

3 TABLE OF CONTENTS LIST OF PARTIES AND THEIR COUNSEL.... i TABLE OF CONTENTS....i i INDEX OF AUTHORITIES.... i v STATEMENT OF THE CASE....1 ISSUES PRESENTED FOR REVIEW...2 STATEMENT OF FACTS Andres Diaz s Claims Relevant Procedural History...8 SUMMARY OF ARGUMENT...9 ARGUMENTS AND AUTHORITIES A. Standard of Review B. Ample Evidence Exists Which Supports The Jury s Verdict Sufficient Evidence Exists To Support A Finding Diaz Was Not A Willing Seller Sufficient Evidence Exists To Support A Finding No Market Existed For Used Vehicles Of This Nature More Than A Scintilla of Evidence Exists To Support A Determination Diaz Did Not Suffer Diminution In Damages Ample Evidence Exists To Show Diaz s Diminution In Value Damages Were Speculative CONCLUSION AND PRAYER ii

4 CERTIFICATE OF SERVICE STATEMENT REGARDING ORAL ARGUMENT APPENDIX iii

5 TABLE OF AUTHORITIES Cases American Airlines, Inc. v. United States, th 418 F.2d 180 (5 Cir. 1969)... Benoit v Wilson, 239 S.W.2d 792 (Tex. 1951) Bradford v. Vento, 48 S.W.3d 749 (Tex. 2001) Callejo v. Brazos Elec. Power Coop., Inc., 755 S.W.2d 73 (Tex.1988) City of Harlingen v. Estate of Sharboneau, 48 S.W.3d 177 (Tex. 2001) City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005) , 13, 17, 20 Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227 (Tex. 2004) Garcia v. Insurance Co. of Pa., 751 S.W.2d 857 (Tex. 1988) Hunt v. Ellisor & Tanner, Inc Kinder Morgan N. Tex. Pipeline, L.P. v. Justiss, 202 S.W.3d 427 (Tex. App.--Texarkana 2006, no pet.) Main Bank & Trust v. York, 498 S.W.2d 953 (Tex. Civ. App.--San Antonio 1973, writ ref d n.r.e.) Mancorp, Inc. v. Culpepper, 802 S.W.2d 226 (Tex. 1990) , 14 McGalliard v. Kuhlmann, 722 S.W.2d 694 (Tex. 1986) Octane Oil Refining Co. v. Blankenship Antilley Implement Co., 117 S.W.2d 885 (Tex. Civ. App.--Eastland 1938, no writ) Ortiz v. Jones, 917 S.W.2d 770 (Tex. 1996) iv

6 Reid Road Mun. Util. Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 337 S.W.3d 846 (Tex. 2011) Shelton v Taylor, 615 S.W.2d 912 (Tex. Civ. App.--Eastland, 1981) State v. Windham, 837 S.W.2d 73, 77 (Tex. 1992) Swink v. Alesi, 999 S.W.2d 107 (Tex. App.--Houston [14th Dist.] 1999, no pet.) Texas Farmers Ins. Co. v. Cameron, 24 S.W.3d 386 (Tex. App. Dallas 2000, pet. denied) Texas Pipe Line Co. v. Hunt, 228 S.W.2d 151 (1950)...18, 19 Transp. Ins. Co. v. Moriel, 879 S.W.2d 10 (Tex. 1994) Voskamp v. Arnoldy, 749 S.W.2d 113 (Tex. App.--Houston [1st Dist.] 1987, writ denied) Other Authorities TEXAS RULES OF CIVIL PROCEDURE v

7 STATEMENT OF THE CASE This appeal arises from cause number DC L styled Andres Diaz v. rd Caroline Culwell, in the 193 Judicial District Court of Dallas County, Texas, the Honorable Carl H. Ginsberg presiding. The case involves claims arising from an automobile accident on October 17, 2009 between Culwell and Diaz. (C.R. 7.) Diaz was stopped at a red light at the intersection of Hillcrest Avenue and Binkley Road 1 in Dallas County, Texas, when Culwell collided with the rear of Diaz s vehicle. (Id.) Diaz sued Culwell for negligence and gross negligence seeking personal injury damages, mental anguish damages, diminution in value as to his vehicle, and exemplary damages. (Id. at ) Before trial, Diaz non-suited, without prejudice, his personal injury claims and waived his claim for gross negligence in exchange for Culwell s liability stipulation liability. (2 RR 4-5.) The only question at trial was whether Diaz should recover for diminution in value to his vehicle. (Id. at 5.) The jury awarded Diaz $0.00 in diminution in value damages. (C.R. 143.) The trial court granted Diaz s motion for judgment notwithstanding the jury s verdict 1 The appellate record in this matter consists of a one (1) volume Clerk s Record filed with the Court on May 1, 2012, which will be referred to by page number (i.e., C.R. ), along with the source where appropriate. Additionally, the appellate record includes a four (4) volume Reporter s Record filed with the Court on April 16, 2012, which will be referred to by volume and page number (i.e., RR ). 1

8 and awarded Diaz $15, in diminution in value damages, $ in prejudgment interest, and post-judgment interest. (Id. at ) ISSUES PRESENTED FOR REVIEW Culwell s appeal presents the following issues for the Court s review: 1. Whether the trial court committed error by granting Diaz s judgment notwithstanding the jury s verdict and substituting its opinion as to the credibility of the witnesses and sufficiency of the evidence in direct contravention to the jury s verdict. 2

9 STATEMENT OF FACTS 1. DIAZ S CLAIMS On October 17, 2009, a vehicle driven by Culwell collided with the rear-end of Diaz s vehicle. (C.R. 7.) Diaz alleges he was stopped at a red light at the intersection of Hillcrest Avenue and Binkley in Dallas County, Texas, when Culwell failed to stop and collided with Diaz s vehicle. (Id.) Diaz filed his original petition on July 26, (Id. at 6.) Initially, Diaz sought damages for his claimed physical injuries and for the diminution in value of his vehicle. (Id. at 6-8.) On April 25, 2011, Diaz filed his second amended petition which added a claim for gross negligence and a demand for exemplary damages. (Id. at 48.) Five (5) days before trial, Diaz filed his third amended petition on September 23, 2011 to add a claim for negligence per se. (Id. at ) At trial, the live pleading included claims for negligence, negligence per se, and gross negligence. (Id.) During the pre-trial conference and before voir dire, Culwell stipulated to liability in exchange for Diaz dropping his gross negligence claim. (2 RR 4.) Additionally, Diaz non-suited without prejudice all claims other than the claim for diminution in value. (Id. at 5.) The only issue at trial, therefore, was whether Diaz sustained a compensable loss (i.e., diminution in value of his vehicle) because of the October 17, 2009 accident. (Id. at 5; and 8-9.) 3

10 Diaz testified about his love of cars and the purchase of his dream car. (Id. at 8.) Diaz told the jury he had always dreamed of owning the AMG version of a Mercedes. (Id. at 9.) Further, Diaz stated he had wanted to purchase a brand new Mercedes C63 AMG (the Mercedes ) for the last four (4) years. (Id.) In fact, Diaz considered the Mercedes to be a collectors type car. (Id.) Diaz also testified the Mercedes was his dream car. (Id. at 10.) In early October 2009, Diaz entered into a financial arrangement with Ewing Automotive ( Ewing ) to purchase the Mercedes for close to $85, (Id. at 12.) On October 17, 2009, Diaz, a music professor at SMU, had attended a recital at the Meadows Building and was on his way home when the accident occurred. (Id. at 13.) Diaz testified he had stopped at the red light at Hillcrest and Binkley for around ten (10) seconds when Culwell rear-ended him. (Id. at 15.) After the accident, Diaz took the Mercedes to Ewing for repairs. (Id. at 17.) Diaz introduced as evidence various photographs Ewing took of the Mercedes after the accident and before it was repaired. (Id. at ) Culwell objected based on relevance because liability had been stipulated. Diaz argued the pictures were relevant because: (Id. at 19.) The jury s job is to determine whether there is a diminishment in value on this car,... 4

11 Ewing performed nearly $10, in repairs to the Mercedes. (Id. at 22.) In fact, Diaz later testified most people would never be able to tell the Mercedes was ever in an accident. (Id. at 27.) To this day, Diaz continues to drive the Mercedes as his primary vehicle. (Id. at 22.) Diaz testified that after Ewing repaired the vehicle, he asked a Ewing salesman how much Ewing would pay for his Mercedes or how much Ewing would give him in credit toward the purchase of a new car. (Id. at 23.) According to Diaz, the salesman offered him $56, (Id.) Diaz, however, did not testify that the amount offered by the salesman was based solely on the fact the vehicle was involved in an accident, as opposed to the fact it was now a used vehicle. (Id.) Diaz also testified he took the Mercedes to a number of other places who allegedly would not give him a verbal or written appraisal as to the value of the vehicle. (Id.) Diaz goes on to state he would take a big loss if he decided to sell the vehicle. (Id. at 24.) On cross-examination, Diaz confirmed, nearly two (2) years after the accident, he still uses the Mercedes as his primary vehicle and drives it on a day-to-day basis. (Id. at 25.) Diaz also testified the Mercedes runs well and that he has driven it over 16,000 miles since the accident. (Id.) During his testimony, Diaz testified that, after 5

12 the repairs performed by Ewing, most people would never know or be able to tell the Mercedes had ever been in an accident. (Id. at 27.) Moreover, Diaz admitted that while a few unidentified individuals inquired about buying the Mercedes, none of them ever actually made an offer. (Id. at 27.) In fact, Diaz confirmed he never actually made any material (i.e., good faith) efforts to sell the Mercedes. (Id. at 28.) When asked if he had plans on selling the Mercedes, Diaz answered No. (Id.) Culwell asked Diaz whether, when he started to consider buying the Mercedes, he ever considered buying a used one, to which Diaz responded, no: Q: Now, when you first started looking into buying this vehicle - you saved up your money and you wanted this specific Mercedes - did you look at buying a used C63 AMG? A: We,, buying a high-end car like that used can be tricky, because if you end up with problems with the - you know, if the car is mistreated when it is new, the problems that could come up later can be very expensive to fix. So I thought that I would buy it new and just take very good care of it from day one. Q: So, because it s such a high-end car and such a specialized vehicle, you would agree that most sophisticated buyers look for a brand new car instead of one that s been used; is that fair? A: Yes. Q: Whether or not its been in a wreck or not, you would prefer to buy that kind of car brand new rather than used, correct? A: Yes. 6

13 (Id. at ) Diaz called Donald Shipman ( Shipman ) to the stand who testified as to the value of the Mercedes after the accident. (Id. at 30.) After discussing his experience in the car industry, Shipman noted the owner of a vehicle realizes a loss when you trade in or sell a vehicle after it has been involved in an accident. (Id. at ) Ultimately, Shipman opined he felt Diaz s Mercedes diminished in value $15, after the accident. (Id. at 46.) On cross-examination, Shipman testified a vehicle undergoes a much higher rate of depreciation in the first two (2) weeks and first few months than at any other time of the life of the vehicle. (Id. at 49.) In fact, Shipman agreed a vehicle takes a big hit in value as soon as it is driven off the lot. (Id.) Moreover, Shipman agreed that if Diaz keeps the Mercedes, the claimed loss of value will even out and Diaz can sell the Mercedes without suffering a loss. (Id. at 51.) Shipman also testified Diaz has not (and will not) realize a loss (i.e., damage or harm) until he actually sells the Mercedes. (Id. at 53.) During closing argument, counsel for Culwell summarized the testimony the jury heard directly from Diaz as to whether he was or could be considered a willing seller: 7

14 Mr. Diaz testified that he still drives the car (Id. at 25.), that he doesn t plan to sell it (Id. at 28.), that it still drives well after the repairs were made (Id. at 25.), and that the average person would not be able to tell the vehicle had been repaired (Id. at 27.). (Id. at 73.) The trial began and ended on September 30, 2011, and the jury returned a verdict awarding Diaz $0.00 in damages. (Id. at 81.) 2. THE RELEVANT PROCEDURAL HISTORY After the parties closed, the trial court submitted a jury charge which specifically instructed the jury they are the sole judges of the credibility of the witnesses and the weight to be given their testimony. (C.R. 141 & 142.) Only one question was submitted to the jury, which returned a verdict finding Diaz did not sustain any damages. (Id. at 143.) The trial court, without objection, submitted the following question to the jury: Question One What is the difference in the market value in Dallas County, Texas of the vehicle driven by Plaintiff immediately before the collision in question and immediately after the repairs to that vehicle had been completed. Market value means the amount that would be paid in cash by a willing buyer who desires to buy, but is not required to buy, to a willing seller who desires to sell, but is under no necessity of selling. 8

15 Answer in dollars and cents: $ 0.00 (Id.) The trial court signed the jury verdict the same day - September 30, (Id. at 144.) Diaz filed his motion for judgment notwithstanding the verdict on October 21, 2011, arguing the jury s verdict lacked an evidentiary basis. (Id. at 149.) Culwell filed her response on November 1, (Id. at 155.) The trial court entered an order on November 4, 2011 granting Diaz s motion for judgment notwithstanding the jury verdict and awarding Diaz $15, (Id. at ) In the November 4, 2011 Final Judgment, the trial court specified its basis for granting Diaz s judgment notwithstanding the jury verdict: The Court is disregarding the jury verdict because there is no evidence to support the verdict and because the evidence conclusively proved as a matter of law that [Diaz] suffered diminution in value damages in the amount of $15, (Id. at 159.) Culwell filed her motion for new trial on November 29, (Id. at 161.) Culwell filed her notice of appeal on January 17, (Id. at 167.) SUMMARY OF THE ARGUMENT The jury is the sole judge of the credibility and weight to be given to a witness s testimony, and whether to accept or reject all or any part of such testimony. It was Diaz s burden to prove by a preponderance of the evidence he sustained damage or harm and that he suffered diminution in value caused by the 9

16 accident. According to the jury, Diaz failed to meet his burden. There is ample evidence from which the jury could have determined any or all of the following: 1. Diaz was not a willing seller for purposes of the definition of market value, as the Mercedes was his dream car. 2. No willing buyer existed for the Mercedes based on its status as a high-end, specialized collector s car, for purposes of the definition of market value. 3. The jury rejected Shipman s testimony and determined Diaz did not suffer any damages because the Mercedes was fully repaired by the dealership and people could not even tell it was ever in an accident. 4. The jury determined the damages sought by Diaz were too speculative, and Diaz did not prove by a preponderance of evidence he was entitled to diminution in value damages. It is one of the main tenets of Texas law that a court may not invade the fact-finding role of the jury, which alone determines the witnesses credibility, the weight to give their testimony, and whether to accept or reject all or any part of that testimony. Moroever, a trial court cannot disregard the jury s findings if more than a scintilla of evidence exists to support any basis for the jury s decision. As such, Culwell need only direct the Court to some evidence which supports, in some form or fashion, the jury s verdict to demonstrate the trial court erred in overturning the jury s verdict. Conversely, Diaz must demonstrate a complete absence of any evidence to support the trial court s decision to overturn the jury s verdict. 10

17 The jury was presented with evidence supporting a finding Diaz was not a willing seller for purposes of the definition of market value, or a willing buyer did not exist based on the high-end status of the Mercedes and because it was considered a collector s car, or that Diaz did not suffer any damages because the Mercedes was fully repaired by the dealership to the point people could not even tell the Mercedes was ever in an accident, or Diaz failed to prove by a preponderance of the evidence his damages were not speculative or that he was entitled to diminution in value damages. When the Court, as it must, views the evidence favorably and in support of the jury s verdict, and disregards any evidence to the contrary, it is patently clear more than a scintilla of evidence exists supporting the jury s decision, and the trial court committed error when it incorrectly overturned the jury s verdict. Thus, the trial court s judgment notwithstanding the jury s verdict must be reversed, the November 4, 2011 Final Judgment withdrawn, and the jury s verdict reinstated. ARGUMENTS AND AUTHORITIES The Trial Court Incorrectly Substituted Its Opinion In Place Of The Jury s When It Granted Diaz a Judgment Notwithstanding The Verdict And Awarding $15, In Damages A. STANDARD OF REVIEW The trial court granted the judgment notwithstanding the jury s verdict ( JNOV ) on the purported basis that no evidence existed to support the jury s 11

18 decision. (C.R. 159.) This presents a legal sufficiency review for this Court as to whether more than a scintilla of evidence exists which could, when viewed favorably and disregarding all evidence to the contrary, supports the jury s verdict. A trial court may grant a motion for JNOV if a directed verdict would have been proper, and a trial court may only disregard a jury finding on a question that has no support in the evidence. TEX. R. CIV. P Stated differently, only when no evidence exists which could support the jury s finding may a trial court disregard the jury s verdict and grant a motion for judgment notwithstanding the verdict. Shell Oil Products Company v. Main Street Ventures, LLC, 90 S.W.3d 375, 387 (Tex. App.--Dallas 2002, rev. dism.); Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227 (Tex. 1990). An appellate court reviews a trial court s grant of a JNOV under the same legal sufficiency standard as appellate no-evidence challenges, that is, viewing the evidence and reasonable inferences in the light most favorable to the jury s finding. City of Keller v. Wilson, 168 S.W.3d 802, 807, 823 (Tex. 2005) (stating that the test for legal sufficiency should be the same for summary judgments, directed verdicts, judgments notwithstanding the verdict, and appellate no evidence review ). The duty of the courts is to only set aside the jury s verdict when the court concludes that the verdict is so contrary to the overwhelming weight of the evidence as to be 12

19 manifestly unjust. Tex. Farmers Co. v. Cameron, 24 S.W.3d 386, 392 (Tex. App. Dallas 2000, pet. denied). The court must credit evidence that supports the judgment if reasonable jurors could, and must disregard contrary evidence unless reasonable jurors could not. City of Keller, 168 S.W.3d at 827. If the evidence falls within the zone of reasonable disagreement, a court may not invade the fact-finding role of the jurors, who alone determine the credibility of the witnesses, the weight to give their testimony, and whether to accept or reject all or any part of that testimony. Id. at 822. To determine whether there is no evidence to support the jury verdict, the appellate court views the evidence in a light that tends to support the finding of the disputed fact and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001). If more than a scintilla of probative evidence supports the finding, the legal sufficiency challenge fails. Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, (Tex. 2004). More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994). And the trial court is not authorized to substitute its judgment for that of the jury when there is evidence from which the jury could have believed either side s version 13

20 on the disputed issue. Shelton v Taylor, 615 S.W.2d 912 (Tex. Civ. App.--Eastland, 1981) citing Benoit v Wilson, 239 S.W.2d 792 (Tex. 1951). In fact, if more than a scintilla of evidence supports the finding, the court cannot disregard the jury s answer to the question. Mancorp, Inc., 802 S.W.2d at 228; Garcia v. Insurance Co. of Pa., 751 S.W.2d 857, 858 (Tex. 1988). When a trial court specifies the ground upon which it is granting a JNOV, an appellant need only challenge the ground relied upon by the trial court. Voskamp v. Arnoldy, 749 S.W.2d 113, 118 (Tex. App.--Houston [1st Dist.] 1987, writ denied); see also Swink v. Alesi, 999 S.W.2d 107, (Tex. App.--Houston [14th Dist.] 1999, no pet.). B. MORE THAN A SCINTILLA OF EVIDENCE EXISTS TO SUPPORT THE JURY S VERDICT 1. Legally Sufficient And Ample Evidence Exists For The To Jury Determine Diaz Was Not A Willing Seller Diaz testified he still regularly drives the vehicle, the vehicle runs well, and he has no intention or plans to sell the vehicle. (3 RR ) Although Diaz said he approached Ewing after the Mercedes was repaired, it is plausible the jury considered it nothing more than a fishing expedition and not the actions of a willing seller. This is especially true when Diaz had previously testified the Mercedes was his dream car (Id. at 8.), a car he had dreamed of buying - brand new - for close to four (4) years (Id. at 9.), and that Diaz considered the Mercedes a collector s type 14

21 car. (Id.) From this testimony, it is reasonable the jury never believed or rejected Diaz s status as a willing seller as required for him to recover diminution in value damages. It is also true the jury may have determined Diaz was not a willing seller because of the lack of any substantive efforts by Diaz to sell the Mercedes or even to solicit an offer on it from any of the number of other places he visited. (Id. at 23.) This is especially true as Shipman never once testified used car dealers would never make an offer to buy Diaz s Mercedes after it had been involved in a wreck. In fact, Shipman consistently testified Mercedes dealers, used car dealers, leasing companies, and auction houses would all make offers to buy the Mercedes from Diaz. (Id. at 40; 43, 44.) Yet, Diaz testified no one would even give him a verbal or written offer. (Id. at 23.) Furthermore, Diaz confirmed he had only spoken with a few people in the two (2) years after the accident about selling the Mercedes, yet still never received even one offer. (Id. at 27.) Based on the absence of any potential offer to buy, the jury could have simply deemed Diaz was not a willing seller and was not entitled to diminution in value damages. Simply put, ample evidence - and clearly more than a scintilla - exists from which the jury could have decided Diaz was not a willing seller as required for 15

22 him to recover diminution in value damages. Accordingly, the trial court erred when it overturned the jury s verdict. It is not enough to show the jury s verdict is merely contrary to the evidence. The record must clearly demonstrate the jury s verdict is so contrary to the overwhelming preponderance of the evidence as to be clearly wrong and manifestly unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). Here, the jury s verdict is not clearly wrong and manifestly unjust when the evidence is viewed in the light most favorable to the verdict. Conversely, the jury may have decided a market does not exist to sell this type of high-end vehicle once considered a used vehicle. During the trial, the jury heard Diaz himself testify he would never buy a used vehicle of this kind (Id. at 28.), and the majority of buyers for this type of vehicle would also not buy one used, regardless of whether it had been in an accident or not. (Id. at ) Shipman, a witness called by Diaz, also testified the majority of people would only buy this type of vehicle brand new. (Id. at 50.) It is well within the jury s purview to reject other testimony from Diaz or Shipman and decide a willing buyer did not exist for this type of high-end, collector s type vehicle once it was driven off the dealer s lot. Regardless, the testimony and evidence in this matter clearly demonstrate some evidence exists to support the jury s verdict. 16

23 2. The Jury May Have Determined Diaz Did Not Sustain Diminution In Value Damages After The Mercedes Was Repaired Or The Repairs Rendered Such Damages Speculative A jury is free to accept or reject any or all of the testimony from any witness. In fact, the Texas Supreme Court has expressly held that jurors are not bound, as a matter of law, to accept the parties expert testimony. See Callejo v. Brazos Elec. Power Coop., Inc., 755 S.W.2d 73, 75 (Tex.1988). At trial, the jury learned Diaz s Mercedes was repaired by the Mercedes dealership he bought it from - Ewing. In total, Ewing made nearly $10, in repairs (Id. at 22.) and, as Diaz admitted, after the repairs, it was nearly impossible to know the Mercedes had ever been in an accident. (Id. at 27.) Further, Diaz admitted the Mercedes still runs great (Id. at 25.) and is still his primary everyday vehicle. (Id.) It is entirely possible the jury found the repairs made by Ewing precluded any diminution value to the Mercedes. In other words, the jury may have decided the repairs made by the dealership (Ewing) fully restored the Mercedes back to its pre-accident condition and made any diminution in value damages too speculative to award. Regardless, the testimony as to the repairs performed by Ewing, coupled with the fact it was close to impossible to know the Mercedes was in an accident, is legally sufficient evidence to support the jury s verdict. The jury is not required to accept an expert s opinion, except on certain specific issues. City of Keller, 168 S.W.3d at 820 (even un-controverted expert 17

24 testimony does not bind jurors unless the subject matter is one for experts alone). Contrary to Diaz s position in his JNOV, appraisal testimony is not within the sole purview of an expert witness. (C.R. 150.) In fact, the Texas Supreme Court has recognized all appraisal opinion (i.e., that is testimony establishing market value) is at best something of a speculation, and the question of market value is peculiarly one for the fact-finding body. Texas Pipe Line Co. v. Hunt, 228 S.W.2d 151, 156 (1950). In Hunt v. Ellisor & Tanner, Inc., 739 S.W.2d 933 (Tex. App. Dallas 1987, writ denied), this Court upheld a jury verdict as to diminished value which differed from the undisputed testimony of two (2) expert witnesses. Hunt, 739 S.W.2d at 943. The Hunt court noted it is peculiarly within the province of the jury to weigh opinion evidence and the judgment of experts. Octane Oil Refining Co. v. Blankenship Antilley Implement Co., 117 S.W.2d 885, 886 (Tex. Civ. App.--Eastland 1938, no writ). It is within the province of the jury to decide the extent of credibility which should be given to an expert witness. American Airlines, Inc. v. United States, 418 F.2d 180, 194 th (5 Cir. 1969). Expert opinion testimony is but evidentiary, and is never binding upon the trier of facts. Hunt, 739 S.W.2d at 942. Thus, the fact-finder is not cut off from exercising considerable personal judgment about how far such opinions are to be relied upon. Main Bank & Trust v. York, 498 S.W.2d 953, 957 (Tex. Civ. App.--San Antonio 1973, writ ref d n.r.e.). Hence, the issue of the diminished value is not an 18

25 issue solely within the discretion of an expert witness, and is a matter squarely within the purview of the jury to decide. The jury s finding of zero (0.00) diminution in value damages is consistent with two (2) fundamental principles underlying the determination of market value. First, the determination of market value is not an exact science based on set mathematical formulas. Texas Pipe Line Co., 228 S.W.2d at And second, the best indicator of market value is the price that willing buyers and willing sellers actually negotiate in the relevant market. City of Harlingen v. Estate of Sharboneau, 48 S.W.3d 177, 182 (Tex. 2001). The jury was well within its right to reject Diaz s expert s opinion, and instead decide no diminution value occurred to the Mercedes since it was fully and wholly repaired. It is also plausible the jury rejected Diaz s diminution in value argument on the basis no market existed within which to establish the value of the Mercedes prior to and after the accident. In other words, due to the high-end nature of the Mercedes, its status as a collector car, and the dream vehicle of Diaz, any diminution valuation would be speculative and not based on actually negotiated amounts. The jury s finding was well justified by the evidence and the testimony presented. Merely because Shipman provided an opinion as to the market value or diminished value of the vehicle, the trial court was not at liberty to disregard the 19

26 finding by the jury. It has long been the rule in Texas that opinion testimony does not establish any material fact as a matter of law. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). Moreover, even uncontroverted expert testimony does not bind jurors unless the subject matter is one for experts alone. City of Keller, 168 S.W.3d at 820. The determination of diminution in value or market value is not an issue solely left to experts; rather, even non-expert property owners can testify as to market value and diminution in value damages. See Reid Road Mun. Util. Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 337 S.W.3d 846, (Tex. 2011); Kinder Morgan N. Tex. Pipeline, L.P. v. Justiss, 202 S.W.3d 427, 443 (Tex. App.--Texarkana 2006, no pet.) (property owner testimony can include testimony regarding diminution in the market value to the property resulting from damage). Hence, the determination of diminution in value is not solely within the purview of an expert witness. Moreover, it is for the jury to decide which evidence to accept and which to reject in deciding the ultimate issue of market value. State v. Windham, 837 S.W.2d 73, 77 (Tex. 1992). This Court when applying the appropriate standard of review, that is, crediting all favorable evidence that reasonable jurors could believe and disregarding all contrary evidence, must conclude ample evidence exists and 20

27 constitutes legally sufficient evidence to support the jury s verdict. As such, legally and factually sufficient evidence exists to support the verdict. Accordingly, the trial court erred when it overturned the jury s verdict. The jury, as the sole judge of the credibility of the witnesses and evidence, found that Diaz did not meet his burden by a preponderance of the evidence and said so by their verdict. There is ample and legally sufficient evidence to support the jury s verdict and Diaz s JNOV should have been denied. CONCLUSION AND PRAYER Caroline Culwell has demonstrated and produced more than a scintilla of evidence supporting the finding and verdict of the jury. As such, the trial court erred when it granted Diaz s motion for judgment notwithstanding the jury s verdict, and this Court should reverse the Final Judgment entered by the trial court and reinstate and render judgment consistent with the jury s verdict. Respectfully submitted, WALTERS, BALIDO & CRAIN, L.L.P. /s/ Jason Wren Gregory R. Ave State Bar No Jason Wren State Bar. No Jay R. Harris State Bar No Jackson Street, Suite

28 Dallas, Texas Telephone Number: (214) Facsimile Number: (214) ATTORNEYS FOR APPELLANT CAROLINE CULWELL CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the Brief of Appellant Caroline Culwell was served upon the following counsel of record for all parties on June 21, 2012, in accordance with the Texas Rules of Appellate Procedure. James W. Mills III Via Facsimile No.: The Mills Lawfirm 8333 Douglas Avenue, Suite 1000 Dallas, Texas ATTORNEY FOR APPELLEE ANDRES DIAZ /s/ Jason Wren Jason Wren STATEMENT REGARDING ORAL ARGUMENT Appellant Caroline Culwell believes this case may be decided based on the briefs submitted. However, if the Court believes oral argument would be helpful, Appellant Caroline Culwell requests the opportunity to present this Court with oral argument, pursuant to Texas Rule of Appellate Procedure /s/ Jason Wren_ Jason Wren 22

29 APPENDIX Item Tab Charge of the trial court and the jury s verdict dated September 30, A The Final Judgment entered by the trial court on November 4, B 23

30

31

32

33

34

35

36

37

38