Powell-Buick-Pontiac GMC, Inc. v. Bowers

OPINION ON MOTION FOR REHEARING

Bowers claims that we erred “in holding that there was no evidence to support the jury’s answer1 regarding market value of the truck.” In support of such claim, Bowers argues that we misconstrued Porras v. Craig, 675 S.W.2d 503 (Tex.1984).2 He contends that Porras is inapplicable to this case because it was a suit in which relief was sought for damages to land while this suit is a deceptive trade practice action wherein Bowers is seeking *15recovery for damages to personal property. Additionally, Bowers claims that his testimony on value was not based on “personal” reasons as was the case with the owner’s testimony in Porras v. Craig, 675 S.W.2d at 505.

Bowers directs our attention to the opinion in Tom Benson Chevrolet, Inc. v. Alvardo, 636 S.W.2d 815 (Tex.Civ.App.—San Antonio 1982, writ ref'd n.r.e.), in consideration of the no evidence point presented. We have read that case. In considering Benson’s point of error that the damage issue in that case submitted a wrong measure of damage, the San Antonio court noted that the point was not preserved by objection to the charge and overruled the same. Thereafter, by what appears from a reading of the opinion to be obiter dictum, the court makes the pronouncement that “the owner [plaintiff below] testified that the car was worth approximately $500 to her. Current case law does not require an owner to testify specifically as to the ‘reasonable market value’ of a car in order to support a jury’s finding on property val-ue_” 636 S.W.2d at 823. This dictum is unsound. It is stated to rest upon the decisions made in two Court of Civil Appeals cases, Classified Parking System v. Kirby, 507 S.W.2d 586 (Tex.Civ.App.—Houston [14th Dist.] 1974, no writ), and Barstow v. Jackson, 429 S.W.2d 536 (Tex.Civ.App.—San Antonio 1968, no writ). In Kirby, the owner testified to the value of the vehicle, and in Jackson, the owner, a used car dealer, testified to the market value of his property. We find the dictum in Alvardo unpersuasive and conclude that Kirby and Jackson are inapposite here.

Porras, on the other hand, is clearly applicable. In Porras, Justice Spears writing for the majority, after noting that the proper way of proving market value is by opinion testimony, states that an “owner of the property can testify to its market value, even if he could not qualify to testify about the value of like property belonging to someone else.” 675 S.W.2d at 504. Justice Spears then observes that “[e]ven an owner’s testimony, however, is subject to some restrictions.” 675 S.W.2d at 504. The Porras opinion announces the restriction to be that the “testimony must show that it refers to market, rather than intrinsic or some other value of the property.” 675 S.W.2d at 505. That opinion instructs that the requirement “is usually met by asking [the owner] if he is familiar with the market value of his property.”3 Id. The Court determined that the owner’s testimony constituted no evidence of market value of his land because the articulated basis for the opinion expressed by his testimony demonstrated affirmatively that the owner’s testimony referred to the value of the land (in its damaged state)4 personally to him. 675 S.W.2d at 505.

As we read Porras, an opinion expressed by an owner of property as to its value must show that it refers to market value of the property as distinguished from its intrinsic value or its personal value to him. As noted in our original opinion, the only testimony tending to establish the market value of the truck sold to Bowers, based upon its actual condition as delivered, came from Bowers. Questions and answers comprising this testimony are set forth in our opinion and need not be repeated here. We originally concluded that the testimony does not constitute any evidence of the market value of the truck in its defective condition on the date it was delivered to Bowers. We adhere to that conclusion.

Bowers also argues in his motion for rehearing that his statement that the truck was worth “[a]bout 6-$7,000 because I would have to put a new motor in it,” refers to the market value of the truck. However, because that statement was in *16response to the question “[i]n its condition what was it worth to you?,” we disagree. Even assuming that Bowers’ interpretation of his testimony is reasonable, it still fails to provide evidentiary support for the finding. No evidence was presented at trial to establish the reasonable costs of installing a new engine in the truck. Hence Bowers’ value opinion is clearly without the necessary factual basis. Porras v. Craig, 675 S.W.2d at 505; Stinson v. Cravens, Dargan & Co., 579 S.W.2d 298, 299 (Tex.Civ.App.—Dallas 1979, no writ). The motion for rehearing is overruled.

. In response to Special Issue No. 13.

. Cited in support of our holding.

. We are cognizant of the rather cryptic sentence employed by Justice Spears at page 505 reading, "Moreover, this is not just a case in which the lawyer failed to ask his client if he was familiar with the market value of the property.”

. The defendant Porras trespassed on a portion of Craig’s land, bulldozed down the existing fence, cut a number of large trees and built a new fence on a boundary line established by a recent survey.