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Balderas-Ramirez v. Felder

Court of Appeals of Texas, Third District, Austin

November 21, 2017

Rebeca D. Balderas-Ramirez, Appellant
Anthony Carl Felder, Appellee


          Before Justices Puryear, Pemberton, and Goodwin.


          Bob Pemberton, Justice.

         Rebeca D. Balderas-Ramirez appeals a final summary judgment that she take nothing on claims she had asserted against Anthony Carl Felder following an automobile collision. The pivotal issues on appeal concern whether Balderas-Ramirez presented any competent evidence of property damages-including several years' worth of claimed loss-of-use damages-and whether any such damages exceeded amounts for which she has already been compensated by Felder's insurance carrier. We will affirm the judgment.


         The collision in question occurred on or about December 18, 2011, when Felder rear-ended Balderas-Ramirez's vehicle on the MoPac expressway. Within a week thereafter, Balderas-Ramirez filed suit against Felder, asserting theories of negligence and negligence per se founded on alleged acts that included driving while intoxicated. At the suit's inception, Balderas-Ramirez sought recovery of alleged personal-injury damages, but those claims were settled within a few months by Felder's automobile insurance carrier, USAA. In the meantime, Balderas-Ramirez had also made a property-damage claim with USAA. That claim did not settle, and she eventually amended her pleadings to seek recovery of those alleged damages instead.

         Balderas-Ramirez had purchased the vehicle she had been driving-a 1999 Toyota 4Runner-about three weeks prior to the collision. She purchased the 4Runner from a Laredo used-car dealer, Zapata Auto Center, for a sale price of approximately $7, 000. The purchase was effected through an installment-sales contract under which Balderas-Ramirez made a $2, 500 down payment and agreed to satisfy the remaining balance (including interest and finance charge) through monthly payments to Zapata, the first of which was to come due on December 22, 2011 (less than one week after the collision). The contract also explicitly granted Zapata a security interest in the vehicle to secure Balderas-Ramirez's debt.[1]

         There is no dispute that the 4Runner was a total loss following the collision (i.e., repair, even if possible, would be economically infeasible relative to the vehicle's value[2]), tantamount to the vehicle's total destruction.[3] The general measure of direct damages in such instances is "the fair market value of the [vehicle] immediately before the injury at the place where the injury occurred, "[4] subject to a credit or offset, equal to the vehicle's salvage value, if the owner retains the vehicle.[5] "Fair market value" is "the price the property will bring when offered for sale by one who desires to sell, but is not obliged to sell, and is bought by one who desires to buy, but is under no necessity of buying."[6] In her suit, Balderas-Ramirez sought recovery of $7, 000-the approximate total price for which she had purchased the 4Runner, including both down payment and credit-as the vehicle's "market value" immediately prior to the collision.

         Balderas-Ramirez also prayed for $1, 700 in "towing and storage charges, " plus "loss-of-use" damages represented by the cost to rent a replacement vehicle between the date of the collision through trial and judgment. The claim for loss-of-use damages would eventually become the most significant of all of Balderas-Ramirez's claims, at least in terms of financial stakes, because her suit lingered unresolved for several years. Eventually, in 2015, the suit was placed on the dismissal-for-want-of-prosecution docket, but was retained on Balderas-Ramirez's motion and set for trial in early 2016. And as that date approached, an additional key development bearing on Balderas-Ramirez's loss-of-use-damages claim occurred-the Texas Supreme Court handed down J&D Towing, LLC v. American Alternative Insurance Corporation, [7] in which it held that loss-of-use damages could be recovered when personal property is totally destroyed, rejecting a contrary prior prevailing understanding among Texas lower courts.[8]

         In advance of the trial date, but after J&D Towing was decided, Felder filed the summary-judgment motion that became the basis for the judgment being challenged on appeal. In his motion, Felder asserted both traditional and no-evidence grounds challenging Balderas-Ramirez's entitlement to recover any of the property damages she was seeking.[9] In support of his traditional grounds, Felder presented evidence that centered on the claims-adjustment process undertaken by USAA on his behalf. This evidence included a "market evaluation report" prepared for USAA, which presented an analysis of the "actual cash value" of Balderas-Ramirez's vehicle immediately prior to the collision, taking account of its model year, mileage at the time (171, 219), other specific features, history (e.g., a prior accident), and the local-market values of 4Runners having comparable features. The report concluded that the vehicle's actual cash value had been $5, 750.

         In turn, as reflected in a December 23, 2011, letter from USAA to Balderas-Ramirez's counsel and an affidavit from the USAA claims representative who handled the claim, also included in Felder's summary-judgment evidence, USAA had declared the vehicle to be a total loss and offered to settle Balderas-Ramirez's property-damage claim for $6, 194.68, an amount that purported to compensate her for the value of her vehicle, plus various taxes and fees that would be associated with obtaining a replacement vehicle. There is no contention that Balderas-Ramirez accepted this particular offer (she would later explain that she had demanded her full $7, 000 purchase price), but Felder presented evidence that Balderas-Ramirez's counsel did respond to a request made in the letter that he provide USAA with the name, address, and account number of "the finance company." On January 9, 2012, counsel faxed to USAA a copy of the installment-sales contract between Balderas-Ramirez and Zapata. On the following day, USAA issued a check to Zapata for $4, 997.75-the total amount that Balderas-Ramirez was to pay Zapata under the installment sales contract-to fully satisfy the debt and Zapata's corresponding security interest in the vehicle.

         Felder also presented summary-judgment proof to establish his right to an offset for the vehicle's salvage value. This evidence reflected that following the collision, Balderas-Ramirez's wrecked 4Runner had been towed and stored by Pronto Wrecker Service, where it had remained during the claims-adjustment process.[10] In his affidavit, the USAA claims representative recounted that Balderas-Ramirez did not release the vehicle to USAA (which would have enabled the carrier to sell it for salvage), thereby retaining it as if she would be attempting to repair or sell it herself. Thereafter, as explained in deposition and affidavit testimony from Pronto representatives, Pronto ultimately auctioned off the 4Runner as salvage following the notice and expiration of time entitling it to treat the vehicle as abandoned.[11] This evidence further reflected that Pronto obtained $1, 700 in proceeds from the sale and that it applied this amount to offset outstanding charges that included $150 for towing and $1, 400 for storage ($20 per day times 70 days).[12]

         Of final note, Felder presented evidence that in June 2013, USAA had issued a check in the amount of $241.15, made out to Balderas-Ramirez and her counsel, with the notation, "Loss of use payment under Property Damage Liability Coverage." Balderas-Ramirez and her counsel had then signed the check and deposited it.

         Relying on his summary-judgment evidence, Felder asserted that Balderas-Ramirez could not, as a matter of law, recover any amount of the 4Runner's market value through her suit because: (1) the USAA market-value report established conclusively that the vehicle's pre-collision market value had been $5, 750, not the $7, 000 being alleged; (2) Felder's liability for this amount would be offset by the $1, 700 in salvage value that Balderas-Ramirez had retained by not releasing the vehicle, leaving her only $4, 050 in market value that she could recover;[13] and (3) she had already been compensated for this loss-and more-through the $4, 997.75 payment made on Felder's behalf to Zapata to pay off Balderas-Ramirez's debt on the vehicle. Felder further asserted a no-evidence ground challenging whether Balderas-Ramirez could present any competent evidence of the vehicle's market value, or at least of any value that would raise an issue of material fact in the face of his summary-judgment proof of market value and prior payment.

         Felder additionally challenged, through traditional and no-evidence grounds, whether Balderas-Ramirez had actually incurred any loss of towing and storage charges, as she had claimed. As for loss-of-use damages, Felder urged that J&D Towing should not be applied "retroactively, " leaving Balderas-Ramirez's claim governed by the prior prevailing rule that would bar such recovery in total-destruction cases. Alternatively, Felder urged that his summary-judgment evidence established conclusively that USAA's 2013 "Loss of use payment" for $241.15 had been an accord and satisfaction of Balderas-Ramirez's entire claim for those damages. Finally, Felder challenged through both traditional and no-evidence grounds whether Balderas-Ramirez could present any competent evidence to support her recovery of loss-of-use damages, or at least of any amount for which she had not already been compensated.

         Balderas-Ramirez filed a response that chiefly emphasized her own testimony by affidavit and deposition. This included her opinion, presented under color of the "property owner rule, " that her vehicle's market value immediately before the collision had actually been $7, 500, higher than both Felder's valuation and the $7, 000 she had previously demanded. She had derived this figure, she explained, by consulting online advertisements of 1999 4Runners being offered for sale in Travis County and averaging the listed prices. This calculation, she further suggested, found additional support in the fact that she had paid $7, 000 for the vehicle a mere three weeks before the collision.

         Balderas-Ramirez employed a similar methodology in regard to her claimed loss-of-use damages, which she urged were controlled by J&D Towing and therefore recoverable. She testified that she had periodically contacted rental car companies following the collision and derived an "opinion" that "the average rental cost in Travis County, Texas, from the date of the crash to now [February 2016, the date of her affidavit] is $80.00 per day." As for why or how she was entitled to recover loss-of-use damages for such an extended period, Balderas-Ramirez professed that she had been unable to work for three or four years after the collision (she claimed to be a professional photographer) "because of the pain that I have when I bend over, where I hurt myself in the accident, " leaving her with insufficient financial resources to purchase a replacement vehicle. However, Balderas-Ramirez acknowledged during her deposition, in January 2016, that she had resumed working by that time and was earning $300 per day as a photographer. And during the interim, she also admitted, her then-husband had provided her a "truck" to drive. Although she did not specify the precise duration of this use, she indicated that the inception corresponded to her resumption of driving following the collision[14] and ended when she and her husband later divorced, an event she placed in December 2015. Balderas-Ramirez further disputed that any of her claims were foreclosed by the two payments USAA had made and insisted that Felder's summary-judgment evidence had supported rather than negated her claim for $1, 700 in "towing and storage costs."

         The trial court granted Felder's summary-judgment motion "in all respects" and rendered judgment that Balderas-Ramirez take nothing on her claims. This appeal followed.


         In six issues, Balderas-Ramirez urges that the trial court erred in granting summary judgment as to Felder's no-evidence grounds and as to Felder's traditional grounds that were founded on the prior payments by USAA.

         Standard of review

         We review summary judgments de novo.[15] Summary judgment is proper when there are no disputed issues of material fact and the movant is entitled to judgment as a matter of law.[16]We take as true any evidence favorable to the non-movant and indulge every reasonable inference from the evidence in the non-movant's favor.[17]

         With respect to no-evidence grounds, the non-movant has the burden of presenting evidence to raise a genuine issue of material fact as to the elements of claims or defenses that were challenged in the motion.[18] No-evidence motions are essentially pretrial directed verdicts, and we review them under the same legal-sufficiency standard.[19] That is, we will affirm a grant of a no-evidence motion when the record reveals a complete absence of evidence of a vital fact, rules of law or evidence prevent the court from giving weight to the only evidence offered to prove a vital fact, the evidence offered to prove a vital fact is no more than a mere scintilla, or the evidence conclusively establishes the opposite of a vital fact.[20] With "traditional" summary-judgment grounds, in contrast, the movant must first present evidence that establishes or negates a claim or defense as a matter of law.[21] Only if this burden is met must the non-movant present evidence to raise a genuine issue of material fact that would defeat summary judgment.[22]

         Where, as here, the trial court does not specify any particular grounds for its summary-judgment ruling, we must affirm on any meritorious ground presented in the motion and preserved on appeal.[23] Our analysis is confined solely to the grounds presented in the summary-judgment motion or response.[24]

         Market value

         In her first issue, Balderas-Ramirez insists that she raised a genuine issue of material fact regarding the 4Runner's fair market value by opining that the value was $7, 500. She emphasizes the "property owner rule, " the principle that a layperson is presumed qualified to testify to the market value of his or her own property, a subject on which an expert's testimony is otherwise required.[25] But as the Texas Supreme Court has explained, a lay property owner's qualification to testify to market value does not automatically mean that his or her opinions are competent evidence of market value. Rather, the witness must meet "the same requirements as any other opinion evidence"[26]-and this includes providing underlying factual bases for the opinion and not mere ipse dixit.[27] "This burden is not onerous, " as a lay witness nowadays can look to an abundance of resources online and elsewhere regarding nearby sales and other relevant factors.[28]

         In attempting to meet this burden, Balderas-Ramirez testified that at some point following the collision but "many years" before her January 2016 deposition, she had consulted and found three advertisements for sale of 1999 Toyota 4Runners in Travis County. She included printouts of these advertisements in her summary-judgment evidence. The sale prices at which the vehicles were being offered ranged from $6, 995 for a green SR5 model with four-wheel drive and 170, 019 miles, to $7, 995 for a Limited model of unspecified color and 140, 263 miles, to a tan Limited model with 141, 565 miles that was being offered for $7, 992.[29] As for how she had derived her $7, 500 figure from the advertisements, Balderas-Ramirez explained that it represented an "average value."

         Although Balderas-Ramirez did not personally recall the specific features of her own 4Runner aside from the color (which she described as "sand" but appearing green at night), the USAA market-value report, which she also included in her summary-judgment proof, as had Felder, reflected that hers had been a two-wheel drive SR5 model with 171, 219 miles. Balderas-Ramirez did not indicate whether or how her "average value" had taken account of several obvious distinctions between her vehicle and the three comparators-among other things, the two higher-priced 4Runners had approximately 30, 000 fewer miles than hers and had been Limiteds, a higher- tier model than her SR5, and none of the three advertisements had indicated prior damage from an accident. But even leaving aside such distinctions, the three advertisements do not supply a basis for Balderas-Ramirez's market-value opinion because they represent merely the price at which the other 4Runners were being offered for sale, as opposed to any prices at which the 4Runners were actually being sold.

         Balderas-Ramirez overlooks that market value is a function of not only the seller's side of the transaction, but also the buyer's-it is, again, "the price the property will bring when offered for sale by one who desires to sell, but is not obliged to sell, and is bought by one who desires to buy, but is under no necessity of buying."[30] Consequently, the price at which property is offered for sale is not, without more, evidence of its fair market value at the time of the listing.[31]While the offered price might be some evidence of the price a willing seller would accept, it is not evidence of the price a willing buyer would pay.[32] Balderas-Ramirez presented no more than the bare fact that other 4Runners had been offered for sale at particular prices, not any evidence of actual sales. The advertised prices do not provide a basis for her opinions as to market value.

         Nor does the purchase price of Balderas-Ramirez's 4Runner provide a basis for her market-value opinion. Although Balderas-Ramirez emphasizes the relatively short (3-week) passage of time between her purchase and the collision, she presented no evidence that would permit a reasonable fact finder to infer that the vehicle had necessarily remained in materially the same condition during the interim.[33] In the face of Felder's no-evidence challenge, she, not Felder, bears the burden of coming forward with that evidence. But even if the temporal proximity of the purchase in itself could support the inference, it remains that Balderas-Ramirez made the purchase in Laredo, whereas her burden was to establish fair market value in Travis County.[34] She made no attempt to supply any factual basis to support an inference that the Laredo purchase price would be materially similar to the Travis County fair market value.

         Absent any underlying factual basis, Balderas-Ramirez's opinion as to the 4Runner's pre-collision fair market value was not competent and did not raise a genuine issue of material fact. Accordingly, we overrule her first issue. And aside from her first issue, Balderas-Ramirez has not challenged Felder's entitlement to summary judgment, per a traditional ground, that the 4Runner's correct fair market value had been $5, 750. Nor has she contested Felder's entitlement, per other traditional grounds, to a $1, 700 offset against this amount, reflecting the salvage value that she had retained, [35] or that this would reduce Balderas-Ramirez's potential recovery of the vehicle's value to $4, 050.

         On the other hand, these unchallenged traditional grounds also effectively establish that Balderas-Ramirez was entitled to recover $4, 050 for the 4Runner's value. Consequently, Felder's take-nothing summary judgment on this claim must also hinge on his traditional ground claiming a $4, 977.75 credit against his potential liability-completely offsetting the $4, 050 recovery, with $927.75 left over to apply against other claims-representing USAA's payment on his behalf to Zapata. Balderas-Ramirez challenges this ground in her fourth issue.

         Balderas-Ramirez asserts that the payment to Zapata is tantamount to a "gift" to that business because it was not part of any settlement with her, was not otherwise required legally, and was not made in exchange for any consideration from Zapata. She further posits that if Felder can obtain credit for the payment, "an insurance company could send a check to a travel agency for a ticket to Disneyland on behalf of an injured claimant, then later demand full credit for the payment against any settlement." However, Zapata was a secured creditor with rights in the vehicle, and Balderas-Ramirez overlooks uncontroverted summary-judgment evidence that USAA's payment satisfied the entirety of her underlying debt, a debt that she would have otherwise continued to owe despite the collision. That USAA made the payment directly to Zapata rather than to her is ultimately not material to the parties' respective rights because the entirety of the payment, even if made to her, would still have been subject to Zapata's security interest.[36] And while Balderas-Ramirez suggests that USAA failed to comply with certain technical requirements for discharging Zapata's lien, [37] it remains undisputed that the payment satisfied the underlying debt in full.

         Ultimately, Balderas-Ramirez seeks an impermissible double-recovery for lost vehicle value for which she had already been compensated when USAA paid off her debt to Zapata. The trial court did not err in granting summary judgment that she take nothing on that claim. We overrule her fourth issue.

         "Towing and storage ...

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