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