Opinion issued June 28, 2018
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`In The
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`Court of Appeals
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`For The
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`First District of Texas
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`NO. 01-17-00826-CV
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`JAMES R. BREVELLE, Appellant
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`V.
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`CHARLES ALLEN, Appellee
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`
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`On Appeal from the County Civil Court at Law No. 2
`Harris County, Texas
`Trial Court Case No. 1074422
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`MEMORANDUM OPINION
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`A vehicle driven by Charles Allen struck a vehicle driven by James Brevelle.
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`Allen stipulated to liability, and a jury trial was held on a single measure of
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`damages: diminution in value of Brevelle’s 2014 Corvette. The jury determined
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`that the diminution in value was zero dollars, which led to a take-nothing
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`
`
`
`In The
`
`Court of Appeals
`
`For The
`
`First District of Texas
`
`————————————
`
`NO. 01-17-00826-CV
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`———————————
`
`JAMES R. BREVELLE, Appellant
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`V.
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`CHARLES ALLEN, Appellee
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`
`
`On Appeal from the County Civil Court at Law No. 2
`Harris County, Texas
`Trial Court Case No. 1074422
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`
`
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`MEMORANDUM OPINION
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`A vehicle driven by Charles Allen struck a vehicle driven by James Brevelle.
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`Allen stipulated to liability, and a jury trial was held on a single measure of
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`damages: diminution in value of Brevelle’s 2014 Corvette. The jury determined
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`that the diminution in value was zero dollars, which led to a take-nothing
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`judgment. In two issues, Brevelle challenges the legal and factual sufficiency of
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`the evidence to support the award of zero dollars in diminution damages.
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`We affirm.
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`Background
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`James Brevelle owns a 2014 Corvette Stingray LT3. The production date for
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`his vehicle was April 2014. It was less than six months old, and had only 1,800
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`miles on it, when, in September 2014, Charles Allen’s vehicle collided with it.
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`Allen stipulated to liability, and the Corvette was repaired at a dealership at no cost
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`to Brevelle. Brevelle pursued a claim against Allen for the diminution in value of
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`the Corvette, contending that the vehicle was worth less because it had been in an
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`accident.
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`The parties held a one-day jury trial with just two witnesses: Brevelle (the
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`plaintiff and owner of the Corvette) and Christopher Stillwell (the defense expert
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`witness). Brevelle testified that he was told by a Mac Haik dealership
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`representative that he should be prepared to “take about a $10,000 hit” on his
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`trade-in when he sells it due to the vehicle’s accident history. This statement
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`confirmed Brevelle’s understanding that vehicles with accident histories have less
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`of a market value than vehicles without accident histories.
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`Brevelle’s vehicle appraisal was admitted into evidence. It states the actual
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`cash value of the vehicle just before the wreck was $60,000. And the loss of value
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`2
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`as a result of the accident (which does not include repair costs) is $9,556,
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`representing 16 per cent of the pre-accident actual cash value. Thus, Brevelle
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`presented evidence of diminution-in-value damages equaling or nearly equaling
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`$10,000.
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`Photographs of the Corvette were attached to Brevelle’s appraisal. The jury
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`was not told when the pictures were taken, though the appraisal document indicates
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`that the appraiser personally observed the vehicle as part of his appraisal. The
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`photographs do not reveal any aesthetic irregularity in the vehicle.
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`Stillwell testified that he is a “physical damage specialist” with a decade of
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`experience appraising vehicles. He has reviewed more than 2,500 vehicle
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`diminution files and testified more than 15 times as an expert. Stilwell agreed that
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`Brevelle’s Corvette lost value because of the accident.
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`Stillwell described Brevelle’s Corvette as a “high end sports car.” He
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`testified that the vehicle suffered a “moderate” level of damage in the accident.
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`Specifically, there was damage to the fender apron that the vehicle’s fender
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`attaches to as well as the front bumper, lower grill area, hood, and left fender. The
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`vehicle’s frame, however, was not damaged, according to Stillwell’s assessment.
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`Stillwell testified that an average purchaser would consider cosmetic damage and
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`damage to structural reinforcement pieces to be less significant than frame damage
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`and, as a result, would assign less loss-of-value to a vehicle without frame damage.
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`3
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`Stillwell reviewed three additional photographs of the Corvette, which were
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`admitted into evidence. According to Stillwell, these three pictures confirmed that
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`Brevelle’s Corvette did not have frame damage but, instead, had only structural
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`reinforcement damage, which the parties agreed had been repaired.
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`Stillwell also discussed a damage-assessment-calculation form, which was
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`admitted into evidence. Stillwell testified that the maximum loss of value for a
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`wrecked vehicle, if it has been properly repaired, has clear title, and is sold by a
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`willing seller and purchased by a willing buyer, is 10 per cent of the actual cash
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`value before the accident. The calculation form assists in estimating the loss more
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`precisely, given various factors, including the mileage, the level of damage, and
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`whether there was prior damage. Using the form, Stillwell testified that his
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`estimation of the loss in value—the diminution in value—of the Corvette due to
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`this accident was $2,168.46. Stillwell clarified that this was not an exact appraisal
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`but was, instead, an estimation of the actual loss, which might be more or less.
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`Stillwell opined that it is “very possible” a willing buyer would reduce the
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`value of this vehicle, in his estimation, by $2,168.46, because of its accident
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`history but that it was also “very possible” that a buyer might reduce the value by a
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`larger amount, such as $4,000, or a smaller amount, such as $1,000. According to
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`Stillwell, one cannot say with certainty what the diminution in value actually is
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`because it depends on the buyer’s and seller’s willingness to complete the sale
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`4
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`transaction at a given point in time. He reiterated that the $2,168.46 amount was an
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`“estimate opinion” rather than an exact calculation. But he testified that the
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`Corvette “absolutely” has lost some value due to the accident.
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`Stillwell agreed that an exact copy of a vehicle that has not been in an
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`accident would be preferable to a willing buyer, which is “common sense.” He
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`further agreed that an accident places a “stigma” on a car for resale purposes.
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`After the witnesses testified, the court charged the jury. The jury was asked a
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`single question: what sum of money would fairly and reasonably compensate
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`James Brevelle for the diminution in value, if any, of his Corvette Stingray
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`resulting from the accident caused by Allen. The jury answered the question with
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`zero dollars in diminution damages.
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`Brevelle moved for a judgment notwithstanding the verdict, a new trial, and
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`reconsideration. All motions were denied, and the trial court entered a final take-
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`nothing judgment, which Brevelle has appealed.
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`Standards of Review
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`To successfully challenge the legal sufficiency of a factfinder’s ruling that
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`the challenging party failed to meet its burden of proof, the challenging party
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`“must demonstrate on appeal that the evidence establishes, as a matter of law, all
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`vital facts” necessary to meet the burden of proof. Dow Chem. Co. v. Francis, 46
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`S.W.3d 237, 241 (Tex. 2001). We begin our review by examining only the
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`5
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`evidence that supports the challenged finding, ignoring all evidence to the contrary.
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`Id. If there is no evidence to support the factfinder’s finding, then, the entire record
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`is examined to see if the contrary proposition is established as a matter of law.
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`Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). We will affirm the
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`factfinder’s finding unless the evidence conclusively establishes the opposite
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`conclusion as a matter of law. Dow Chem., 46 S.W.3d. at 241 (citing Croucher v.
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`Croucher, 660 S.W.2d 55, 58 (Tex. 1983)).
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`To successfully challenge the factual sufficiency of a factfinder’s finding
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`that the challenging party failed to meet its burden of proof, the challenging party
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`“must demonstrate on appeal that the adverse finding is against the great weight
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`and preponderance of the evidence.” Id. at 242. We consider and weigh all the
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`evidence, and uphold the challenged finding unless “the evidence is so weak” or
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`“the finding is so against the great weight and preponderance of the evidence that it
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`is clearly wrong and unjust.” Id. A court of appeals may not reverse the judgment
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`unless it clearly states why the factfinder’s finding is factually insufficient. Pool v.
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`Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).
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`A jury may believe one witness and disbelieve another, and it may resolve
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`inconsistencies in any witness’s testimony. Benavente v. Granger, 312 S.W.3d
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`745, 748 (Tex. App.—Houston [1st Dist.] 2009, no pet.).
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`6
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`Discussion
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`In challenging the legal and factual sufficiency of the evidence supporting
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`the jury’s verdict, Brevelle argues that there was no evidence that the diminution
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`equaled exactly zero dollars, given that both witnesses presented some evidence
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`that it equaled a higher amount. But, as discussed below, the jury was not bound by
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`the witnesses’ damages figures and was free to determine a different damages
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`amount, based on the evidence presented and its own knowledge and experience.
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`Stillwell, an expert, testified about the level of damage to Brevelle’s
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`Corvette, how diminution in value is calculated, and the factors that go into the
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`calculation. He estimated a diminution amount of a little over $2,000. This was the
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`lesser of the two figures presented to the jury. Stillwell agreed that the number
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`could be more or less than his $2,000 estimate, and he discussed the factors that
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`would affect the analysis.
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`Even uncontroverted expert testimony is not binding on a jury as long as the
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`subject of the testimony is not one for experts alone. City of Keller v. Wilson, 168
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`S.W.3d 802, 820 (Tex. 2005); Uniroyal Goodrich Tire Co. v. Martinez, 977
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`S.W.2d 328, 338 (Tex. 1998) (“The general rule is that opinion testimony, even
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`when uncontroverted, does not bind the jury unless the subject matter is one for
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`experts alone.”); Culwell v. Diaz, No. 05-12-00093-CV, 2013 WL 2609995, at *3
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`(Tex. App.—Dallas June 7, 2013, no pet.) (mem. op.). Diminution in value of a
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`7
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`vehicle after it has been in a wreck but has been repaired does not require expert
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`testimony. See Culwell, 2013 WL 2609995, at *3. A jury is free to disbelieve
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`expert testimony on the issue of diminution in value. Id. (citing City of Keller, 168
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`S.W.3d at 822).
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`As we explained more than forty years ago, a
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`jury is at liberty to reach its conclusion by blending all of the evidence
`admitted before it, aided by its members’ own experience and
`knowledge of the subject of inquiry. Jurors are not compelled to credit
`all the testimony of any witness or to reject it all. Opinion evidence is
`not conclusive. A jury may consider and accept or reject opinions or it
`may find its own opinion from evidence and by utilizing its own
`experience in matters of common knowledge.
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`Coastal Indus. Water Auth. v. Reynolds, 503 S.W.2d 593, 601 (Tex. Civ. App.—
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`Houston [1st Dist.] 1973, writ ref’d n.r.e.).
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`The jury had evidence that the damage to Brevelle’s Corvette did not
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`compromise the vehicle’s frame, that damage to structures other than the frame are
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`considered less consequential, and that the diminution could be less than Stillwell’s
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`estimate of just over $2,000. The jury was shown pictures of the vehicle before and
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`after the wreck and received testimony that the damage had been repaired. The jury
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`reasonably could have applied its common knowledge and experience to evaluate
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`the loss in value based on this evidence. According to the jury, that amount was
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`zero. There was adequate evidence for the jury to make that determination, and it is
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`8
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`not so against the great weight and preponderance of the evidence to make it
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`clearly wrong and unjust.
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`Brevelle has not established a legal or factual insufficiency of the evidence
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`in support of the jury’s verdict. See Culwell, 2013 WL 2609995, at *3 (reversing
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`trial court’s order that granted JNOV to plaintiff car owner and awarded car owner
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`over $15,000 in damages; concluding that jury’s verdict of zero dollars in
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`diminution in value damages was supported by adequate evidence). We overrule
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`both issues.
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`We affirm.
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`Conclusion
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`Panel consists of Justices Higley, Brown, and Caughey.
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`Harvey Brown
`Justice
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`9
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