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Cantu v. Hanchey

Court of Appeals of Texas, Fourth District, San Antonio

July 31, 2019

Lois S. CANTU, Appellant
v.
Chad HANCHEY and Alyka Hanchey, Appellees

          From 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.

          MEMORANDUM OPINION

          Beth Watkins, Justice.

         Appellees 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.

         Background

         The 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.

         The 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.

         Analysis

         Standard of Review

         In an 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 (Tex. 1983).

         No 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.

         Applicable Law

         The 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 (Tex. 2014).

         A ...


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