X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:United Services Automobile Association appeals the trial court’s judgment in favor of Kathleen Pigott in a lawsuit alleging that the foundation movement at Pigott’s residence was caused by plumbing leaks. HOLDING:Affirmed. USAA contends that James Bradley, the Pigott’s expert, was not qualified to testify because he was an industrial engineer, not a civil or geotechnical engineer. USAA relies on Broders v. Heise, 924 S.W.2d 148 (Tex. 1996), to support its contention. Bradley testified that although his degree was in industrial engineering, he practiced civil engineering in the Army for twenty years. After retiring from the Army, he worked with a home builder in analyzing and recommending changes to foundation plans. Finally, he has worked for an engineering firm conducting forensic investigations of foundations and engaging in foundation design. Bradley estimated that he had investigated approximately 6,000 foundations. He explained that he investigated foundations in connection with the sale and purchase of homes and at the request of homeowners who were experiencing problems. Bradley also investigated homes at the request of builders who were unable to sell certain homes because of problems. Furthermore, Bradley testified that he had taught courses for a few insurance companies, including USAA, to train adjusters on how to recognize homes with plumbing leaks. Finally, Bradley testified that he had experience in designing foundations and estimated that he designed approximately ten foundations a week. Texas Rule of Evidence 702 requires that experts be qualified “by knowledge, skill, experience, training, or education.” The court holds that the trial court did not abuse its discretion in concluding that Bradley was qualified based on his knowledge, experience, and training. Bradley’s testimony was grounded in his application of his engineering training to data regarding elevations and soil samples, and his testimony amounted to more than subjective belief or unsupported speculation. Although Bradley’s interpretation of the soil samples differed from other witness’ testimony, this difference in interpretation did not amount to an analytical gap. The trial court could have determined that the analysis Bradley used in reaching his conclusion was reliable given the conflicting testimony regarding the effect the percentage increase in moisture content had on the soil and whether the liquidity index of the soil samples indicated that the soil was in a swelled state. The trial court was not required to determine whether Bradley’s conclusions were correct, but only whether the analysis used to reach them was reliable. The court holds that the trial court did not abuse its discretion in concluding that Bradley’s testimony was reliable. Pigott’s attorney, Richard Bentley, testified that he had expended 373 hours in the case to date, and he charged $250 per hour. Bentley testified regarding the breakdown of his hours, and he testified that the number of hours he had expended and his fee were reasonable. Bentley also introduced an exhibit containing a breakdown of his hours. Finally, Bentley testified regarding the complexity of the case and his experience. Although Bentley was cross-examined regarding the number of hours he had expended conducting research, the cross-examination was not extensive but is limited to a single page of the voluminous reporter’s record. USAA relies on Bentley’s testimony that he was working on a contingent fee basis to support the zero fee award. The court disagrees that the jury was able to award zero attorneys’ fees based on the nature of the contingent fee arrangement. Although one of the factors the jury was instructed that it could consider was whether the fee is fixed or contingent on results obtained, the question asked the jury was “What is a reasonable fee for the necessary services of Mrs. Pigott’s attorney in this case, stated in dollars and cents?” There was no evidence to support a finding that there was no reasonable fee for the necessary services of Bentley. Accordingly, the trial court did not err in disregarding the jury’s award of zero attorney’s fees. OPINION:Lopez, C.J.; Lopez, C.J., Stone and Green, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.