Court of Appeals of Texas, Fourth District, San Antonio
Lois S. CANTU, Appellant
Chad HANCHEY and Alyka Hanchey, Appellees
the 198th Judicial District Court, Bandera County, Texas
Trial Court No. CVCN-16-0000163 Honorable M. Rex Emerson,
Judge Presiding Opinion by: Beth Watkins, Justice Sitting:
Rebeca C. Martinez, Justice.
Sitting: Rebeca C. Martinez, Justice, Beth Watkins, Justice,
Liza A. Rodriguez, Justice.
Chad and Alyka Hanchey sued appellant Lois S. Cantu alleging
there was a latent defect in the home they purchased from
Cantu. After a bench trial, the trial court signed a judgment
finding Cantu liable and awarding the Hancheys damages and
attorney's fees. On appeal, Cantu argues the evidence was
legally insufficient to support the damages award and the
Hancheys were not entitled to recover attorney's fees. We
affirm the trial court's judgment.
Hancheys purchased a home in Pipe Creek, Texas from Cantu.
Before the purchase, Cantu filled out a Seller's
Disclosure Form claiming she was not aware of any active or
previous infestation of termites or other wood-destroying
insects (WDI). The Hancheys relied on that disclosure,
purchased the property, and moved in. Almost immediately,
they observed insects and crumbling sheetrock in the house,
which later revealed an infestation of termites and carpenter
ants inside the walls.
Hancheys sued Cantu alleging several causes of action and
seeking monetary damages. At a bench trial, the Hancheys
testified to damages from the WDI infestation. The trial
court signed a judgment finding Cantu liable for fraud and
ordering Cantu to pay damages of $40, 000 for damage to the
Hanchey home, $3, 500 for the cost of pest treatment, and
$21, 748 in attorney's fees and costs. The trial court
issued findings of fact and conclusions of law, finding
evidence of "extensive carpenter ant infestation"
with "termites and dirt up to waist high in the
walls." The trial court further found that this
infestation resulted in "significant structural damage
to the sheetrock, studs and footers" of the east and
south east walls. Cantu appealed.
appeal from a bench trial, the trial court's findings of
fact have the same force and effect as jury findings.
Anderson v. City of Seven Points, 806 S.W.2d 791,
794 (Tex. 1991). We review a trial court's findings of
fact under the same legal sufficiency standard that we use
when determining whether sufficient evidence exists to
support an answer to a jury question. Rosas v. Comm'n
for Lawyer Discipline, 335 S.W.3d 311, 316 (Tex.
App.-San Antonio 2010, no pet.). When an appellant attacks
the legal sufficiency of an adverse finding on an issue for
which it did not have the burden of proof, it must
demonstrate that there is no evidence to support the adverse
finding. Croucher v. Croucher, 660 S.W.2d 55, 58
evidence exists to support a finding when there is: (a) a
complete absence of evidence of a vital fact; (b) the court
is barred by rules of law or evidence from giving weight to
the only evidence offered to prove a vital fact; (c) the
evidence offered to prove a vital fact is no more than a
scintilla; or (d) the evidence conclusively establishes the
opposite of the vital fact. City of Keller v.
Wilson, 168 S.W.3d 802, 810 (Tex. 2005). Under this
standard, we consider the evidence in the light most
favorable to the prevailing party and indulge every inference
in its favor. Id. at 822. We must credit any
favorable evidence if a reasonable fact finder could and
disregard any contrary evidence unless a reasonable fact
finder could not. Id. at 821-22, 827.
type of compensation a trial court awards for injury to real
property depends upon the nature of the injury. See
Uvalde Cty. v. Barrier, 710 S.W.2d 740, 743-44 (Tex.
App.-San Antonio 1986, no writ). When injury to the land is
permanent, a landowner may recover the lost value of the
land-the difference in market value of the land immediately
before and after the injury. Hous. Unlimited, Inc. Metal
Processing v. Mel Acres Ranch, 443 S.W.3d 820, 825 (Tex.
2014). Injury to real property is considered permanent if:
(a) it cannot be repaired, fixed, or restored; or (b) even
though the injury can be repaired, fixed, or restored, it is
substantially certain that the injury will repeatedly,
continually, and regularly recur, such that future injury can
be reasonably evaluated. Gilbert Wheeler, Inc. v.
Enbridge Pipelines (E. Tex.), L.P., 449 S.W.3d 474, 480