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:John and Vicki Barr’s son was driving John’s 1974 Cadillac El Dorado convertible from Dallas to Fort Worth when it broke down. John called AAA. AAA contacted D&D Wrecker Service, which towed the car. The car was allegedly damaged during towing. John took the car in for repairs and was originally charged $8,270, though he was able to negotiate with the body shop to reduce the bill to $5,000. The Barrs sued D&D and AAA. They said D&D was negligent in towing the car, and that AAA breached its membership agreement with Vicki and negligently referred the towing job to D&D. In a bench trial, the Barrs were ordered to take nothing against either AAA or D&D. HOLDING:Affirmed. The court reviews the sufficiency of the evidence that the cost of repairs was reasonable and necessary. Because this case was presented to the trial court as the finder of fact, the court finds that even if the plaintiff presented more than a scintilla of evidence on each element of a cause of action, this court will reverse the grant of a motion for judgment if the implied findings supporting the judgment are “so against the great weight and preponderance as to be manifestly unjust.” The court points out that the Barrs did not present any witnesses to testify to the reasonableness or necessity of the charges to fix the car. Though the Barrs say that their negotiated-down bill is evidence of the reasonableness or necessity, the court finds that even the final amount of the negotiated-down bill does not speak to the reasonableness or necessity of the charge. The court then reviews whether the expert witness the Barrs wanted to present on the issue of reasonableness and necessity was improperly excluded by the trial court. The court notes that for testifying experts, Texas Rule of Civil Procedure 194.2(f) allowed AAA and D&D Wrecker to request disclosure of the expert’s name, address and telephone number, the subject matter of his testimony, the general substance of his testimony, and if the expert is somehow subject to the control of the other party. The Barrs never disclosed that their witness would testify as an expert, nor did they disclose the subject matter of the witness’ testimony. The Barrs may be excused from their failure to disclose if they can show that there was good cause, and that the other party was not unfairly surprised or prejudiced. The Barrs said the witness was not under the control because they were in a dispute with him over fees. This excuse, “as a matter of law,” is not good cause for the failure to disclose. “It would have been a simple matter for the Barrs to provide a discovery response,” the court observes. And though AAA and D&D Wrecker might have been aware of the witness’ existence due to their access to invoices and correspondence, the court points out that the rules of civil procedure were revised to make that sort of anticipation unnecessary. Finally, the Barrs contend that the court should have permitted the witness to provide lay opinion testimony on the reasonableness and necessity of the charges. However, the Barrs did not ask the trial court to allow him to give such lay testimony. Thus, they cannot pursue this theory of admissibility on appeal. OPINION:Reyna, J.; Gray, C.J., Vance and Reyna, 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.