Eduardo Del Bosque v. Juan Barbosa

REVERSE and RENDER; REMAND and Opinion Filed January 30, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00230-CV
EDUARDO DEL BOSQUE, Appellant
V.
JUAN BARBOSA, Appellee
On Appeal from the 192nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-18-18847
MEMORANDUM OPINION
Before Justices Carlyle, Garcia, and Wright1
Opinion by Justice Garcia
This appeal arises from a breach of oral contract claim in which the jury
awarded construction cost damages to Eduardo Del Bosque and the trial court
granted Juan Barbosa’s motion for judgment notwithstanding the verdict (“JNOV”).
In a single issue, Del Bosque argues the trial court erred in granting the JNOV
because the evidence was legally sufficient to establish that the construction costs
he incurred were reasonable and necessary. We reverse the trial court’s judgment,
render judgment for Del Bosque consistent with the jury’s verdict, and remand to
1
The Hon. Carolyn Wright, Justice, Assigned
the trial court for the limited purpose of determining attorney’s fees and calculating
pre- and post-judgment interest.
I. BACKGROUND
Del Bosque is a veteran contactor with extensive commercial construction
experience. After Barbosa acquired a commercial property, the two entered an oral
contract to construct and operate a restaurant.
Pursuant to the contract, Del Bosque agreed to pay the first $150,000 of
construction costs, and the parties would share all remaining costs equally. Because
Barbosa was serving a federal prison sentence at the time of construction, Del
Bosque advanced all costs necessary to complete the project. When Del Bosque
sought reimbursement, Barbosa denied that the parties had a contract and refused to
pay.
Del Bosque initiated this action against Barbosa, asserting claims for breach
of contract, quantum meruit, and fraud relating to the restaurant property and another
property.2 The breach of contract and quantum meruit claims pertaining to the
restaurant property were tried to a jury. At the close of Del Bosque’s evidence,
Barbosa moved for a directed verdict, arguing there was no evidence that the
construction costs incurred were reasonable and necessary. The trial court denied the
motion.
2
One of the breach of contract counts and the fraud claim pertained to the other property. These claims
were resolved by the parties prior to trial.
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After both sides rested, the case was submitted to the jury. The jury found
that: (i) the parties had entered a contract, (ii) Barbosa breached the contract, (iii)
Barbosa’s performance was not excused, and (iv) Del Bosque suffered damages in
the amount of $117,182.97.
Barbosa moved for JNOV. The trial court granted the motion and rendered a
take-nothing judgment against Del Bosque. Del Bosque now appeals from that
judgment.
II. ANALYSIS
Del Bosque’s sole issue argues the trial court erred in granting the JNOV
because the evidence was legally sufficient to support the jury’s finding that the costs
he incurred were reasonable and necessary and thus recoverable as damages. We
agree.
A trial court may grant a JNOV if there is no evidence to support one or more
of the jury findings on issues necessary to liability. Tiller v. McLure, 121 S.W.3d
709, 713 (Tex. 2003); TEX. R. CIV. P. 301. A trial court’s decision on a JNOV based
on a legal issue is reviewed de novo. See Hall v. Hubco, Inc. 292 S.W.3d 22, 27
(Tex. App.—Houston [14th Dist.] 2006, pet. denied).
When the JNOV is based on a complaint that the evidence is legally
insufficient, we employ the well-settled legal sufficiency or “no evidence” review.
See Tiller, 121 S.W.3d at 713; Helping Hands Home Care, Inc. v. Home Health of
Tarrant Cty., Inc., 393 S.W.3d 492, 515 (Tex. App.—Dallas 2013, pet. denied); see
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also City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005) (test for legal
sufficiency is same for directed verdict, JNOV, and appellate no-evidence review).
We credit evidence favoring the jury verdict if reasonable jurors could and disregard
contrary evidence unless reasonable jurors could not. Tanner v. Nationwide Mut.
Fire Ins. Co., 289 S.W.3d 828, 830 (Tex. 2009). We will uphold the jury’s finding
if it is supported by more than a scintilla of competent evidence. Id.Generally, the evidence is legally insufficient to support a finding and a JNOV
must be granted when the record demonstrates: (1) the complete absence of evidence
on a vital fact; (2) a rule of law or evidence precluded according weight to the only
evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact
amounted to no more than a scintilla; or (4) the evidence conclusively established
the opposite of a vital fact. See City of Keller, 168 S.W.3d. at 810–11. The final test
for legal sufficiency must always be whether the evidence at trial would enable
reasonable and fair-minded people to reach the verdict under review. City of Keller,
168 S.W.3d at 827.
To prevail on his breach of contract claim, Del Bosque was required to prove:
(i) the existence of a valid contract, (ii) that he performed, (iii) Barbosa breached the
contract, and (iv) Del Bosque suffered damages resulting from the breach. See
Barnett v. Coppell North Texas Court, Ltd., 123 S.W.3d 804, 815 (Tex. App.—
Dallas 2004, pet. denied). The jury found there was a contract that was breached.
The damages element is at issue here.
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The damages question in the jury charge asked the jury to find:
What sum of money, if any, if paid now in cash, would fairly and
reasonably compensate Plaintiff for his damages, if any, that resulted
from such failure to comply?
Consider the following elements of damages, if any, and none other:
the reasonable and necessary expenses incurred by Plaintiff to construct
the restaurant in DeSoto, Texas.
Answer in dollars and cents, if any.
In response, the jury found that Del Bosque incurred damages in the amount of
$117,182.97. Our review centers on whether there is sufficient evidence of probative
force to establish that Del Bosque’s expenses were reasonably and necessarily
incurred.
Parties generally have the freedom to choose to pay unreasonably high prices
for goods and services. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 129
(Tex. 2004). To recover remedial damages, however, a party must prove that
expenditures are reasonable and necessary. See Mustang Pipeline Co. v. Driver
Pipeline Co., 134 S.W.3d 196, 200 (Tex. 2004) (per curiam); McGinty v. Hennen,
372 S.W.3d 625 (Tex. 2012).
Here, Del Bosque told the jury that he has over twenty-five years’ experience
in commercial construction and has completed many buildings. He has an
unimpeachable professional history of honesty and competence. He has never been
sued for improper or deficient work.
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Del Bosque said that he personally inspected the premises, evaluated the state
of construction, assessed whether prior work performed at the premises could be
utilized, determined what future work was needed, and personally supervised
construction of the project. He initially estimated that $390,000-$400,000 would be
required to construct the restaurant. Del Bosque explained that he was to be
responsible for the first $150,000 in expenses, and then the parties were to split the
remaining costs.
The invoices and receipts for the construction expenses were admitted into
evidence and reflect that ultimately, Del Bosque’s out-of-pocket costs were
$430,000. Del Bosque paid those costs and expected reimbursement in accordance
with the parties’ agreement.
Although Barbosa had done some work on the property before Del Bosque
began, when Del Bosque first viewed the property, “everything was demolished and
destroyed.” In fact, other than the windows, Del Bosque was unable to use any of
the work Barbosa had done. For example, Del Bosque explained that the wall for the
grill was defective and had to be re-done.
The 375 pages of detailed, dated invoices introduced into evidence further
detail the expenditures. The invoices reflect charges for glass door installation for
the main store front and drive-through, signage, roofing supplies, lumber, concrete,
flooring, a water filtration system and numerous other installation materials and
construction supplies. There are also invoices for stucco work, concrete removal,
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and welding, and a portable toilet service for the job site. Other invoices reflect
purchases for restaurant equipment, including worktables, shelving and racks,
refrigeration and storage units, fryers, and cabinets. Thus, the jury was able to see
what was done, and could reasonably conclude that the invoices reflected costs and
materials necessary for the completion of a restaurant. Cf. Hanna v. Williams, No.
03-22-00254-CV, 2022 WL 17490996, at *10 (Tex. App—Austin Dec. 7, 2022, no
pet. h) (attorney billing records must contain enough detail to allow a factfinder to
determine whether work performed was reasonable and necessary); Rohrmoos
Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 502 (Tex. 2019) (attorney
billing records are strongly encouraged to prove reasonableness and necessity of fees
when those elements are contested). Moreover, none of the details provided in the
invoices and billing records were challenged.
In the present case, no witness explicitly testified that the expenses incurred
were reasonable and necessary, but the parties agree that a plaintiff need not use
these magic words to establish the right to recover costs. See Executive Taxi/Golden
Cab v. Abdelillah, No. 05-03-01451-CV, 2004 WL 1663980, at *4 (Tex. App.—
Dallas July 19, 2004, pet. denied) (mem. op.); CCC Group, Inc. v. South Cent.
Cement, Ltd., 450 S.W.3d 191, 200 (Tex. App.—Houston [1st Dist.] 2014, no pet.).
But Barbosa’s counsel acknowledged during oral argument that if Del Bosque had
testified that the expenses were “reasonable” and “necessary,” it would have
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rendered the evidence sufficient to support the verdict. This is indicative of the
relative strength of the evidence at issue here.
Del Bosque argues that there was no incentive for him to inflate costs because
of the parties’ agreement that he would be responsible for half after his $150,000
initial outlay. We agree that the jury could reasonably draw this inference from the
evidence. See City of Keller, 168 S.W.3d at 822 (indulging every reasonable
inference to support the verdict).
Del Bosque also relies on Barbosa’s testimony to argue there was sufficient
evidence to support the verdict. Specifically, Barbosa testified, based on his review
of the receipts provided in the case, that it would cost between $200,00 and $300,000
to complete the project. When a damage award falls within range of costs testified
to by each side, such testimony is some evidence supporting a jury award for the
reasonable and necessary cost of repairs. See Hernandez v. Lautensack, 201 S.W.3d
771, 777 (Tex. App.—Fort Worth 2006, pet. denied). Indeed, the jury’s verdict of
$117,182.97 comports with the jury having credited this evidence based on the set-
off for Barbosa’s initial investment.
A factfinder has discretion to award damages within the range of evidence
presented at trial. Gulf States Utils. Co. v. Low, 79 S.W.3d 561, 566 (Tex. 2002);
Basic Cap. Mgmt., Inc. v. Dynex Comm. Inc., 402 S.W.3d 257, 265 (Tex. App.—
Dallas 2013, pet. denied). Here, Del Bosque spent approximately $430,000 to
complete the restaurant. Deducting Del Bosque’s agreed-upon $150,000 initial
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outlay leaves $240,000 to be split between the parties, and Del Bosque’s share of
that would be $120,000. The jury awarded Del Bosque $117,182.97. There is a
rational basis for this award. See Low, 79 S.W.3d at 566. Further, the jury’s precise
damage calculation suggests they had adequate information to determine which
expenses they deemed reasonable and necessary.
Jury verdicts are sacrosanct. See Herbert v. Herbert, 754 S.W.2d 141, 143
(Tex. 1988) (recognizing “the sanctity to which a jury verdict is entitled.”). Although
there are certain narrow procedural vehicles for challenging a verdict, appellate
courts should be reluctant to disturb verdicts unless required by law. See McWhorter
v. Humphries, 161 S.W.2d 304, 308 (Tex. App.—Texarkana 1941, writ ref’d n.r.m.);
Southern States Life Ins. Co. v. Watkins, 180 S.W.2d 977, 979 (Tex. App.—Dallas
1944, no writ). Accordingly, guided by the standard of review, we navigate the close
call here with the appropriate deference to the jury’s verdict. See generally, City of
Keller, 168 S.W.3d at 822 (indulging every reasonable inference to support verdict);
Randall v. Walker, No. 03-15-00317, 2017 WL 1404727, at *2 (Tex. App.—Austin
Apr. 13, 2017, no pet.) (appellate courts reverse JNOV if more than a scintilla of
evidence supports jury’s findings).
On this record and under the circumstances present here, the evidence was
sufficient for a reasonable and fair-minded jury to rationally conclude that Del
Bosque was entitled to recover $117, 182.97 for expenses reasonably and necessarily
incurred to construct the restaurant. See City of Keller, 168 S.W.3d at 810–811.
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Therefore, the trial court erred in granting the JNOV. Del Bosque’s issue is
sustained.
III. CONCLUSION
When a trial court erroneously grants a JNOV on a specified basis and an
appellate court concludes the ruling was erroneous, the proper disposition is to
reverse and render judgment in harmony with the jury’s verdict. See Sw. Galvanizing
Inc. v. Eagle Fabricators, Inc., 383 S.W.3d 677, 681 (Tex. App.—Houston [14th
Dist.] 2012, no pet.). Accordingly, we reverse the trial court’s judgment, render
judgment reinstating the jury’s verdict for damages in the amount of $117,182.97,
and remand to the trial court for the limited purpose of determining attorney’s fees
and calculating pre- and post-judgment interest as allowed by law.
/Dennise Garcia/
DENNISE GARCIA
JUSTICE
220230F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
EDUARDO DEL BOSQUE, On Appeal from the 192nd Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. DC-18-18847.
No. 05-22-00230-CV V. Opinion delivered by Justice Garcia.
Justices Carlyle and Wright
JUAN BARBOSA, Appellee participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is REVERSED and judgment is RENDERED that the jury’s verdict
awarding Del Bosque $117,182.97 is reinstated. The case is REMANDED to the
trial court for the limited purpose of determining attorney’s fees and calculating
pre-and post-judgment interest.
It is ORDERED that appellant EDUARDO DEL BOSQUE recover his
costs of this appeal from appellee JUAN BARBOSA.
Judgment entered this 30th day of January 2023.
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