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Parking Company of America Valet, Inc. v. Fellman

Court of Appeals of Texas, Fifth District, Dallas

July 31, 2019


          On Appeal from the County Court at Law No. 3 Dallas County, Texas Trial Court Cause No. CC-16-01273-C

          Before Justices Myers, Molberg, and Carlyle



         Parking Company of America Valet, Inc. and Parking Company of America Love Field, Inc. appeal the trial court's judgment in favor of Bradley Ryan Fellman on his suit for damages. Fellman sued appellants after their employee, a valet parking attendant, crashed Fellman's car. Fellman sued appellants for breach of the bailment contract and for violations of the Texas Deceptive Trade Practices-Consumer Protection Act (DTPA). See Tex. Bus. & Com. Code Ann. §§ 17.41-.63. Appellants bring three issues on appeal contending the trial court erred by (1) denying appellants' motion to strike Fellman's expert witness who testified to the diminution in value of the car as a result of the accident; (2) granting Fellman's motion for summary judgment on his claim for breach of contract; and (3) rendering judgment for Fellman on his claim under the DTPA. We reverse the trial court's judgment in part and vacate the award of treble damages under the DTPA, vacate the trial court's award of attorney's fees and prejudgment interest, otherwise affirm the judgment, and remand the case to the trial court to determine the amount of attorney's fees and prejudgment interest.


         Appellants operate a valet parking service at Love Field Airport in Dallas. Fellman, an attorney, owned a limited-edition 2004 MX-5 Mazdaspeed Miata. Fellman had made over $11, 000 worth of upgrades to the car.

         On August 24, 2015, Fellman drove his car to Love Field Airport and left it with appellants to be valet parked. At that time, the car was undamaged. The parking attendant gave Fellman the customer's portion of a claim ticket. The lot for valet-parked cars was next to the location where drivers leave the cars with the parking attendants. The parking attendant, Adrian Miranda, did not drive the car directly to the lot but instead went on a joyride, driving Fellman's car around the airport. While doing so, Miranda collided with a concrete pillar, damaging the front and right front corner of the car. Miranda filled in the retained portion of the claim ticket to show, falsely, that the damage he caused was present when Fellman left the car to be valet parked.

         When Fellman returned to pick up his car, he was told his car was damaged. Fellman spoke to the manager, Kevin Fanning, and explained that the car was not damaged when he left it with appellants. Fanning did not believe Fellman, and Fanning showed Fellman the claim ticket showing the car was damaged when Fellman left the car with appellants. Fanning accused Fellman of making a fraudulent claim. Fellman asked Fanning to check the security video to see if it showed what happened.

         When Fanning viewed the security video, he saw the car was undamaged when Fellman left it with Miranda and that Miranda drove it beyond the area appellants used for parking cars. Fanning called Fellman and told him the accident was appellants' fault and that appellants would pay all expenses including the towing fee, cost of repairs, and car-rental charges.

         In October 2015, the repairs to Fellman's car were completed. Fellman sent Fanning an e-mail with the information about paying for the repairs, but appellants did not pay them. Fellman's auto insurer paid the repair shop for the cost of the repairs minus the amount of the deductible, and Fellman paid the repair shop the amount of his insurance deductible. In late October 2015, Fellman sent appellants a demand letter for payment of the damages, insisting appellants pay $9, 233.79 to Fellman's insurer for the towing fee, the repairs, and the rental-car charges paid by the insurer. Fellman also demanded payment to him of $4, 422.85 for his uninsured expenses consisting of his insurance deductible of $422.85, $3, 000 for 10 hours of his time spent dealing with the repairs, and $1, 000 for diminution in value to the car as a result of the accident. Fanning told Fellman that appellants would pay for the diminution in value if Fellman got a written appraisal. Fanning told Fellman that appellants would not pay Fellman for his time. The next month, Fellman sent Fanning a written appraisal setting forth the diminution in value to the car as a result of the accident. Appellants did not pay Fellman or his insurer.

         In March 2016, Fellman filed suit against appellants, alleging they breached a contract for bailment of Fellman's car and that they violated the DTPA. The next month, appellants paid Fellman's insurer $9, 233.79 for the towing fee, cost of the insured repairs, and the rental-car charges. Appellants did not pay Fellman for his insurance deductible, the diminished value of the car, or his lost time. Fellman moved for summary judgment on his claim for breach of contract, which the trial court granted, awarding Fellman "$2, 975 for the diminution in value to Plaintiff's car."

         The parties tried Fellman's claim for violations of the DTPA to the trial court. The court concluded that appellants violated the DTPA and that Fellman's damages under the DTPA were $13, 906.64. [1] The court also awarded Fellman additional damages under the DTPA of $25, 813.28. See Bus. & Com. § 17.50(b)(1). The court offset the award of damages by the $9, 233.79 appellants had paid Fellman's insurer. The court also awarded Fellman prejudgment interest of $2, 263.49 and attorneys' fees of $137, 000 through trial as well as additional fees for appeal.


         In their first issue, appellants contend the trial court erred by denying appellants' motion to exclude the testimony of Monica Fisher, Fellman's expert witness on the car's inherent diminution in value. Appellants argue Fisher's testimony and expert report should have been excluded because (1) she signed reports and affidavits that reached different conclusions concerning the diminution in value; (2) for comparable values, Fisher used advertised prices for cars at dealerships instead of the prices at which the cars actually sold; (3) Fellman sold the car before trial, and the sales price of the car established its true market value; (4) Fisher failed to account for hail damage to the car; and (5) Fisher's use of Carfax reports was inconsistent.

         We review a trial court's rulings on objections to summary judgment evidence, including whether expert testimony is reliable, for an abuse of discretion. Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 638 (Tex. 2009). "An expert witness may testify regarding 'scientific, technical, or other specialized' matters if the expert is qualified and if the expert's opinion is relevant and based on a reliable foundation." Transcontinental Ins. Co. v. Crump, 330 S.W.3d 211, 215 (Tex. 2010) (quoting Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 578 (Tex. 2009); Tex. R. Evid. 702). "Conclusory or speculative opinion testimony is not relevant evidence because it does not tend to make the existence of material facts more probable or less probable." Whirlpool, 298 S.W.3d at 637. "When the expert's underlying scientific technique or principle is unreliable, the expert's opinion is no more than subjective belief or unsupported speculation and is inadmissible." Wiggs v. All Saints Health Sys., 124 S.W.3d 407, 410 (Tex. App.-Fort Worth 2003, pet. denied). "[A] party may assert on appeal that unreliable scientific evidence or expert testimony is not only inadmissible, but also that its unreliability makes it legally insufficient to support a verdict." Moreno v. Ingram, 454 S.W.3d 186, 189 (Tex. App.-Dallas 2014, no pet.).

         Different Conclusions in the Two Reports

         Appellants assert that because Fisher issued two reports that reached different conclusions concerning the car's diminution in value due to the accident, her testimony is unreliable. We disagree.

         In the November 6, 2015 original report, Fisher stated the car was worth $9, 374 before the accident and $6, 562 after being repaired resulting in a diminution in value of $2, 812. In the February 28, 2017 amended report, Fisher stated the car was worth $14, 875 before the accident and $11, 900 after being repaired resulting in a diminution in value of $2, 975. Fisher explained the difference between the two reports. In the first report, she did not include the value added to the car by Fellman's upgrades before the accident costing $11, 003.25, including an upgraded turbo system, radiator, clutch, and exhaust system. The first report also did not include the diminution in value from hail damage in 2011.

         In her first report and affidavit, Fisher stated the car's value as of the date of the accident was $9, 374. She determined the diminution in value due to the history of repairs to the car was thirty percent, $2, 812. This appraisal did not include the increase in value due to the upgrades Fellman had made to the car, and the appraisal did not include the decrease in value due to the 2011 hail damage. Fisher testified in her second affidavit that she issued the second report "to account for the May 2011 hail damage and consideration of the more than $11, 000 worth of performance parts and upgrades he installed." In the second report, Fisher increased the car's value by fifty percent of the cost of the upgrades of the car, $5, 501, which made the car's value without damage on the day of the accident $14, 874. Fisher stated the total diminishment in value from all damage repairs was thirty percent. She stated that the hail damage reduced the car's value by ten percent. That left twenty percent of the value diminishment due to the accident in this case. Twenty percent of $14, 874, rounded off, is $2, 975.

         Appellants argue that Fisher's testimony that the upgrades were not included in the first report "is simply not true." They point to the fact that Fellman sent Fisher invoices for the upgrades before she prepared the first report. However, regardless of whether Fellman sent the invoices and whether Fisher received them, nothing in the record shows they were included in the first report.

         Appellants also argue, "Even if one accepts Fisher's 'conservative' assertion that the upgrades were worth 50% of their installation cost on the date of pre-loss valuation, the value of the Vehicle should have only increased by approximately $2, 800, not $5, 500." The upgrades cost $11, 023.25; fifty percent of that amount, rounded off, is $5, 501. Appellants do not explain why Fisher's valuation of the upgrades was unreliable.

         Appellants also argue that Fisher's reports with the two different sets of values and Fisher's affidavits with those numbers, each swearing it was true and correct, irreparably damaged her credibility and made her conclusions unreliable. Appellants cite no authority for this position. Appellants do not explain why the second report combined with Fisher's second affidavit explaining the need to change the valuations in the first report is unreliable.

         Appellants also argue Fisher's testimony was unreliable because she did not personally inspect the car. Fisher resides in Oregon, and the car was in Texas. Fellman sent Fisher pictures of the car and, they discussed the condition of the car. She testified that the pictures and the discussion allowed her to determine the value of the car without personally inspecting it. Fisher's appraisal included a description of the car's condition. Appellants do not assert that this description was inaccurate.

         We conclude appellants have failed to show Fisher's testimony was unreliable because she issued two reports with different valuations.

         Using Advertised Listing Price Instead of Actual Sale Price for Comparable Value

         Appellants argue Fisher's report is unreliable because her reports used as comparable values the advertised prices for similar cars at car dealerships. Fisher did not use the sales prices for those cars, and she testified she did not know at what prices the cars sold. Fisher testified that she used the advertised prices from car dealerships listed on websites like and Autotrader. She testified that the auto dealers' listed prices on those websites were the most available and reliable.

         "Market value is defined as the price property would bring when it is offered for sale by one who desires, but is not obligated to sell, and is bought by one who is under no necessity of buying it." Exxon Corp. v. Middleton, 613 S.W.3d 240, 246 (Tex. 1981). "Market value may be calculated by using comparable sales." Id.

         Appellants cite numerous cases involving real property or natural gas where courts have stated that a seller's asking price or a buyer's offering price does not prove the market value of real property or natural gas. See Houston Unlimited, Inc. Metal Processing v. Mel Acres Ranch, 443 S.W.3d 820, 831 (Tex. 2014) (diminished value of real property due to pollution); Exxon, 613 S.W.2d at 246-47 (comparable sales of natural gas); Hanks v. Gulf, C. & S. Ry. Co., 320 S.W.2d 333, 336 (Tex. 1959) ("an unaccepted offer to purchase is not competent evidence upon the issue of market value of the land"); Lee v. Lee, 47 S.W.3d 767, 785 (Tex. App.-Houston [14th Dist.] 2001, pet. denied) ("Texas courts have long held that unaccepted offers to purchase property are no evidence of market value of property."). This case does not involve natural gas, real estate, or other market where the sales price of comparable property is readily determinable. Instead, this case involves the market value of a used car. Appellants do not explain, and no evidence shows, there is any resource showing the sales prices of used cars. Fisher testified she used the prices dealers advertised on certain websites because they were the "truly factual number."

         The record also shows Fisher did not rely solely on the advertised prices of the comparable cars to determine the value of Fellman's car. She testified she also considered the make and model of the car, the mileage and condition of the car, the upgrades, and the type and extent of damage the car suffered.

         Appellants also criticize Fellman's appraisal for not limiting the comparable cars to the county where the damage occurred, Dallas County. Fisher testified she tries to use comparable cars as close to the owner as possible, but when a car is rare, the search for comparable cars may require searching farther. Fisher's reports used comparable cars located in Alabama and Connecticut. Appellants presented no evidence of a closer car that could have been used as a comparable car. Considering the rarity of the Fellman's limited-edition 2004 Mazdaspeed Miata, the fact that Fisher looked outside Dallas County for comparable vehicles does not make her appraisal unreliable.

         Sales Price of Fellman's Car

         Before trial, and about a year after the accident, Fellman sold the car to a buyer in Georgia for $8, 500. Appellants contend that figure should constitute the post-accident market value for determining diminished value. Fisher testified that the post-accident sale price of a car is irrelevant to ...

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